









51' <j" J- ' • 

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The Supreme Court and the 
Constitution 



\i 



THE MACMILLAN COMPANY 

NEW YORK • BOSTON • CHICAGO 
DALLAS • SAK FXAMaSCO 

MACMILLAN & CO., Limited 

LONDON • BOMBAY • CALCUTTA 

MELBOURNE 

THE MACMILLAN CO. OF CANADA. Ltd, 

TORONTO 



The Supreme Court and 
the Constitution 



BY 

CHARLES A. BEARD 

ASSOCIATE PROFESSOR OF POLITICS IN COLUMBIA UNIVERSITY 



THE MACMILLAN COMPANY 
1912 






Copyright, 19 12 
By the MACMILLAN COMPANY 



Set up and electrotyped. Published June, 1912 



€C!.A3163I9 



PREFACE. 

This little volume is based upon an article which 
I published in the Political Science Quarterly for 
March, 1912. The original text has been consider- 
ably expanded by the addition of new illustrative 
materials. It seems hardly necessary to apologize 
for including such copious quotations from the writ- 
ings of "the Fathers" on the point at issue. The 
best paraphrases are never so eloquent or convincing 
as the documents themselves. 

I Mr. B. E. Shultz assisted me in collecting the 
jmaterials for the essay, and I wish to acknowledge 
my debt to him for this service. 
j C. A. B. 

Columbia University, 

April, 1912. 



i 



CONTENTS. 

CHAPTER PAGE 

I. Attacks upon Judicial Control i 

II. The Constitutional Convention of 1787 and 

Judicial Control 15 

III. Judicial Control before the Ratifying Con- 

ventions 68 

IV. The Spirit of the Constitution 74 

V. The Supporters of the New Constitution 102 

VI. John Marshall and the Fathers 113 

VII. Marbury v. Madison 119 



vu 



CHAPTER I. 

Attacks upon Judicial Control. 

Did the framers of the federal Constitution intend 
that the Supreme Court should pass upon the con- 
stitutionality of acts of Congress? The emphatic 
negative recently given to this question by legal 
writers of respectable authority^ has put the sanc- 
tion of some guild members on the popular notion 
that the nullification of statutes by the federal judi- 
ciary is warranted neither by the letter nor by the 
spirit of the supreme law of the land and is, there- 
fore, rank usurpation. Thus the color of legality, so 
highly prized by revolutionaries as well as by apos- 

* Cf. Chief Justice Walter Clark, of North Carolina, Address be- 
fore the Law Department of the University of Pennsylvania, April 
27, 1906; reprinted in Congressional Record, July 31, 191 1- Dean 
William Trickett, of the Dickinson Law School, "Judicial Dispensa- 
tion from Congressional Statutes," American Law Review, vol. xli, 
pp. 65 et seq. L. B. Boudin, of the New York Bar, "Government 
by Judiciary," Political Science Quarterly, vol. xxvi (191 1), PP- 
238 et seq. Gilbert Roe, of the New York Bar, "Our Judicial 
Oligarchy" (second article). La Follette's Weekly Magazine, vol. iii, 
no. 25, pp. 7-9> J^e 24, 191 1. 

I 



2 THE SUPREME COURT AND THE CONSTITUTION 

ties of law and order, is given to a movement designed 
to strip the courts of their great political fimction. 
While the desirability of judicial control over legis- 
lation may be considered by practical men entirely 
apart from its historical origins, the attitude of those 
who drafted the Constitution surely cannot be 
regarded as a matter solely of antiquarian interest. 
Indeed, the eagerness with which ''the views of the 
Fathers" have been marshalled in support of the 
attack upon judicial control proves that they con- 
tinue to exercise some moral weight, even if they are 
not binding upon the public conscience. 

In an address before the Law Department of the 
University of Pennsylvania on April 27, 1906, the 
Honorable Walter Clark, Chief Justice of North 
Carolina, expressly declares that it was not the inten- 
tion of the framers to confer upon the courts the 
power of passing upon the constitutionaHty of stat- 
utes. A proposition was made in the convention, 
he maintains, to confer this high power upon the 
judiciary and was defeated; the doctrine of judicial 
control had been enimciated in but a few cases before 
the meeting of the Convention and had been strongly 
disapproved by the people ; the action of the Supreme 
Court in assuming the power to declare an act of 



ATTACKS UPON JUDICIAL CONTROL 3 

Congress void was without a line in the Constitution 
to authorize it either expressly or by implication; and 
had the Convention intended to give the courts this 
power, it would not have left its exercise unreview- 
able and final. 

To state the case in Mr. Justice Clark's own lan- 
guage: 

A proposition was made in the convention — ^as we now 
know from Mr. Madison's Journal — that the judges should 
pass upon the constitutionality of acts of Congress. This 
was defeated June 5, receiving the vote of only two States. 
It was renewed no less then three times, i. e., on June 6, 
July 21, and finally again for the fourth time on August 
15; and, though it had the powerful support of Mr. Madi- 
son and Mr. James Wilson, at no time did it receive the 
votes of more than three States. On this last occasion 
(August 15) Mr. Mercer thus summed up the thought of 
the convention: He disapproved of the doctrine that the 
judges, as expositors of the Constitution, should have 
authority to declare a law void. He thought laws ought 
to be well and cautiously made, and then to be incontro- 
vertible. 

Prior to the convention, the courts of four States — New 
Jersey, Rhode Island, Virginia, and North Carolina — had 
expressed an opinion that they could hold acts of the legis- 
lature unconstitutional. This was a new doctrine never 
held before (nor in any other country since) and met with 
strong disapproval. In Rhode Island the movement to 
remove the offending judges was stopped only on a sug- 
gestion that they could be "dropped" by the legislature 



4 THE SUPREME COURT AND THE CONSTITUTION 

at the annual election, which was done. The decisions of 
these four State courts were recent and well known to the 
convention. Mr. Madison and Mr. Wilson favored the 
new doctrine of the paramount judiciary, doubtless deem- 
ing it a safe check upon legislation, since it was to be oper- 
ated only by lawyers. They attempted to get it into the 
Federal Constitution in its least objectionable shape — the 
judicial veto before final passage of an act, which would 
thus save time and besides would enable the legislature 
to avoid the objections raised. But even in this diluted 
form, and though four times presented by these two very 
able and influential members, this suggestion of a judi- 
cial veto at no time received the votes of more than one- 
fourth of the States. 

The subsequent action of the Supreme Court in assirni- 
ing the power to declare acts of Congress imconstitu- 
tional was without a line in the Constitution to authorize 
it, either expressly or by impHcation. The Constitution 
recited carefully and fully the matters over which the 
courts should have jurisdiction, and there is nothing, and 
after the above vote four times refusing jiuisdiction, there 
could be nothing, indicating any power to declare an act 
of Congress unconstitutional and void. 

Had the convention given such powder to the courts, it 
certainly would not have left its exercise final and imre- 
viewable. It gave Congress power to override the 
veto of the President, though that veto was expressly 
given, thus showing that in the last analysis the will of 
the people, speaking through the legislative power, should 
govern. Had the convention supposed the courts would 
assimie such power, it would certainly have given Con- 
gress some review over judicial action and certainly would 
not have placed the judges irretrievably beyond "the con- 



ATTACKS UPON JUDICIAL CONTROL 5 

sent of the governed" and regardless of the popular will 
by making them appointive, and further clothing them 
with the undemocratic prerogative of tenure for life. 

Such power does not exist in any other coimtry, and 
never has. It is therefore not essential to our security. 
It is not conferred by the Constitution; but, on the con- 
trary, the convention, as we have seen, after the fullest 
debate, four times, on four several days, refused by a 
decisive vote to confer such power. The judges not only 
have never exercised such power in England, where there 
is no written constitution, but they do not exercise it in 
France, Germany, Austria, Denmark, or in any other 
country which, like them, has a written constitution. 

A more complete denial of popular control of this Gov- 
ernment could not have been conceived than the placing 
of such unreviewable power in the hands of men not elected 
by the people and holding office for life. The legal-tender 
act, the financial policy of the Government, was invali- 
dated by one court and then validated by another, after 
a change in its personnel. Then the income tax, which 
had been held constitutional by the court for a hundred 
years, was again so held, and then by a sudden change 
of vote by one judge it was held unconstitutional, nul- 
lified, and set at naught, though it had passed by 
a nearly unanimous vote both Houses of Congress, con- 
taining many lawyers who were the equals, if not the 
superiors, of the vacillating judge, and had been approved 
by the President 1 and voiced the will of the people. This 
was all negatived (without any warrant in the Constitu- 
tion for the court to set aside an act of Congress) by vote 
of one judge; and thus $100,000,000 and more of annual 
taxation was transferred from those most able to bear it 
* Cleveland did not, in fact, sign the bill. 



6 THE SUPREME COURT AND THE CONSTITUTION 

and placed upon the backs of those who already carried 
more than their fair share of the burdens of government. 
Under an untrue assumption of authority given by 39 
dead men one man nullified the action of Congress and the 
President and the will of 75,000,000 of living people, and 
in the 13 years since has taxed the property and labor of 
the country, by his sole vote, $1,300,000,000, which Con- 
gress .... had decreed should be paid out of the 
excessive incomes of the rich. 

In England one-third of the revenue is derived from the 
superfluities of the very wealthy by the levy of a graduated 
income tax and a graduated inheritance tax, increasing the 
per cent, with the size of the income. The same system is 
in force in all other civilized countries. In not one of them 
would the hereditary monarch venture to veto or declare 
null such a tax. In this country alone the people, speak- 
ing through their Congress and with the approval of their 
Executive, can not put in force a single measure of any 
nature whatever with assurance that it shall meet with 
the approval of the courts ; and its failure to receive such 
approval is fatal, for, unlike the veto of the Executive, the 
unanimous vote of Congress (and the income tax came 
near receiving such vote) can not prevail against it. Of 
what avail shall it be if Congress shall conform to the 
popular demand and enact a "rate-regulation" bill and 
the President shall approve it if five lawyers, holding office 
for life and not elected by the people, shall see fit to de- 
stroy it, as they did the income-tax law? Is such a govern- 
ment a reasonable one, and can it be longer tolerated after 
120 years of experience have demonstrated the capacity of 
the people for self-government? If five lawyers can nega- 
tive the will of 100,000,000 of men, then the art of govern- 
ment is reduced to the selection of those five lawyers. 



ATTACKS UPON JUDICIAL CONTROL 7 

A power without limit, except in the shifting views of 
the court, Hes in the construction placed upon the four- 
teenth amendment, which, passed, as everyone knows, 
solely to prevent discrimination against the colored race, 
has been construed by the court to confer upon it juris- 
diction to hold any provision of any statute whatever "not 
due process of law." This draws the whole body of the 
reserved rights of the States into the maelstrom of the 
Federal courts, subject only to such forbearance as the 
Federal Supreme Court of the day, or in any particular 
case, may see fit to exercise. The Hmits between State 
and Federal jurisdiction depend upon the views of five 
men at any given time; and we have a government of men, 
and not a government of laws, prescribed beforehand. 

At first the court generously exempted from its veto the 
police power of the several States. But since then it has 
proceeded to set aside an act of the Legislature of New 
York restricting excessive hours of labor, which act had 
been sustained by the highest court in that great State. 
Thus labor can obtain no benefit from the growing human- 
ity of the age, expressed by the popular will in any State if 
such statute does not meet the views of five elderly law- 
yers, selected by influences naturally antagonistic to the 
laboring classes and whose training and daily associations 
certainly can not incline them in favor of restrictions upon 
the power of the employer. 

The preservation of the autonomy of the several States 
and of local self-government is essential to the mainte- 
nance of our liberties, which would expire in the grasp of a 
consolidated despotism. Nothing can save us from this 
centripetal force but the speedy repeal of the fourteenth 
amendment or a recasting of its language in terms that no 
future covirt can misinterpret. 



8 THE SUPREME COURT AND THE CONSTITUTION 

The vast political power now asserted and exercised by 
the coiirt to set aside public policies, after their full deter- 
mination by Congress, can not safely be left in the hands 
of any body of men, without supervision or control by 
any other authority whatever. If the President errs, his 
mandate expires in four years, and his party as well as 
himself is accoimtable to the people at the ballot box for 
his stewardship. If Members of Congress err, they, too, 
must account to their constituents. But the Federal judi- 
ciary hold for life and, though popular sentiment should 
change the entire personnel of the other two great depart- 
ments of government, a whole generation must pass away 
before the people could get control of the judiciary, which 
possesses an irresponsible and unrestricted veto upon the 
action of the other departments — ^irresponsible because 
impeachment has become impossible, and if it were possi- 
ble it could not be invoked as to erroneous decisions tmless 
corruption were shown. 

The control of the policy of government is thus not in 
the hands of the people, but in the power of a small body 
of men not chosen by the people, and holding for life. 
In many cases which might be mentioned, had the court 
been elective, men not biased in favor of colossal wealth 
would have filled more seats upon the bench, and if there 
had been such decision as in the income-tax case, long ere 
this, under the tenure of a term of years, new incvmibents 
would have been chosen, who, returning to the former line 
of decisions, would have upheld the right of Congress to 
control the financial policy of the Government in accord- 
ance with the will of the people of this day and age, and 
not according to the shifting views which the coiut has 
imputed to language used by the majority of the 55 men 
who met in Philadelphia in 1787. Such methods of con- 



ATTACKS UPON JUDICIAL CONTROL 9 

trolling the policy of a government are no whit more tol- 
erable than the conduct of the augurs of old who gave the 
permission for peace or war, for battle or other public 
movements, by declaring from the flight of birds, the 
inspection of the entrails of fowls, or other equally wise 
devices, that the omens were lucky or unlucky — the rules 
of such divination being in their own breasts and hence 
their decisions beyond remedy. 

It may be that this power in the courts, however illegally 
grasped originally, has been too long acquiesced in to be 
now questioned. If so, the only remedy which can be 
apphed is to make the judges elective, and for a term of 
years, for no people can permit its will to be denied, and 
its destinies shaped, by men it did not choose, and over 
whose conduct it has no control, by reason of its having 
no power to change them and select other agents at the 
close of a fixed term. 

Dean William Trickett, of the Dickinson Law 
School, in an eloquent and almost vehement article 
in the American Law Review contends that "if 
the courts possess the power to declare acts of Con- 
gress void, they owe it, not to the intention of the 
makers of the Constitution, but to what Chief Jus- 
tice Gibson has termed 'necessity,' which seems to be 
another name for their own desire." The author 
uses the term ''makers" here to mean the members 
of the conventions of the states who ratified the 
instrument framed at Philadelphia; and of course 
his entire argument rests upon silence, for he does 



10 THE SUPREME COURT AND THE CONSTITUTION 

not contend that the conventions reviewed the prop- 
osition and decided against it. Perhaps it never 
occurred to him to inquire what sort of a federal 
Constitution we should have if the clearly ascertained 
intention of the "makers" were necessary to the 
decision of any single point ! On the intention of 
the framers of the Constitution — which from the 
legal standpoint is, of course, another matter, 
Dean Trickett is scarcely less decided. After bring- 
ing under review the few cases in which state coiirts 
had held invalid state statutes previous to the con- 
vention of 1787, he continues: 

The convention was composed of fifty-five members. Of 
these thirty-nine signed the Constitution. There is noth- 
ing better than surmise that ten of these gentlemen knew 
an3rthing of the decisions. Of those who knew, we have 
no evidence that more than five or six regarded the annul- 
ment of statutes a judicial function. We know that 
Spaight and three or four others^ did not regard it as such. 
Shall we assume that the members of the Convention 
whose sentiment is unknown were divided in the same 
ratio? It would be sheer imbecility to infer from the pre- 
ponderance of the numbers who have spoken for, over 
those who have spoken against, a measure or view, when 
four times as many as both of these classes of speakers 
have remained silent, that a majority of the members 
shared the view of the major part of the speakers. 

^ He does not name them or cite authorities. 



ATTACKS UPON JUDICIAL CONTROL ii 

Of cotirse Dean Trickett does not categorically deny 
that the majority of the Convention regarded the an- 
nulment of statutes as a normal judicial function; but 
he so minimizes the actual evidence in the matter as to 
prejudice his readers strongly against any such view. 
A more recent critic of the judiciary, Mr. L. B. 
Boudin, speaks with less reserve than Dean Trickett 
on the point : 

There were undoubtedly some men in the Convention 
who favored the investing of the federal judiciary with 
general revisory powers over legislation; but all attempts 
to make the judiciary part of the legislative power of the 
federal government failed signally and had to be aban- 
doned by their sponsors. The provisions of the Consti- 
tution as they now stand contain no reference whatever 
to any such powers, either expressly or by obvious impli- 
cation. And there is ample historical proof that — ^what- 
ever the hopes of some, from the complete silence of the 
document, as to possible future development — the great 
majority of the framers never suspected that a general 
power of the judiciary to control legislation could be inter- 
preted into the new Constitution. They evidently 
assumed that such extraordinary power could not be 
exercised unless expressly granted. 

The "ample historical proof" which Mr. Boudin 
mentions is not cited by him, and if he has made the 
researches himself, he gives no hint as to his methods, 
soiurces, and authorities. 



12 THE SUPREME COURT AND THE CONSTITUTION 

Mr. Gilbert Roe, member of the New York Bar, 
in an article in La Follette's Weekly Magazine^ claims 
that it was not the intention of the framers to vest 
judicial control over legislation in the Supreme Court. 
He says; 

It can not well be contended that the framers of the Con- 
stitution assumed that the courts would exercise such 
supervisory power over legislation as they now lay claim 
to. The debates in the Convention negative any such 
idea, as does the fact that the attempt to exercise such 
power by the state courts over state statutes had been 
sharply rebuked by the people. 

In support of this contention Mr. Roe cited the ef- 
forts made in the convention to associate the judges 
with the executive in the exercise of the revisionary 
powers, and quotes the remarks of Mercer and Dick- 
inson presented below. How fragmentary and in- 
conclusive this evidence really is will be shown 
later. 

The arguments advanced by these critics to show 
that the framers of the Constitution did not intend 
to grant to the federal judiciary any control over 
federal legislation may be summarized as follows. 
Not only is the power in question not expressly 
granted, but it could not have seemed to the framers 
to be granted by implication. The power to refuse 



ATTACKS UPON JUDICIAL CONTROL 13 

application to an unconstitutional law was |iot gen- 
erally regarded as proper to the judiciary. In a few 
cases only had state courts attempted to exercise 
such a power, and these few attempts had been 
sharply rebuked by the people. Of the members of 
the Convention of 1787 not more than five or six are 
known to have regarded this power as a part of the 
general judicial power; and Spaight and three or 
four others are known to have held the contrary opin- 
ion. It cannot be assumed that the other forty-odd 
members of the Convention were divided on the 
question in the same proportion. If any conclusion 
is to be drawn from their silence, it is rather that 
they did not believe that any such unprecedented 
judicial power could be read into the Constitution. 
This conclusion is fortified by the fact that a propo- 
sition to confer upon the federal judges revisory 
power over federal legislation was four times made 
in the Convention and defeated. 

A careful examination of the articles cited fails to 
reveal that the writers have made any detailed analy- 
sis of the sources from which we derive our knowledge 
of the proceedings of the Convention and of the views 
held by its members. They certainly do not pro- 
duce sufficient evidence to support their sweeping 



14 THE SUPREME COURT AND THE CONSTITUTION 

generalizations. In the interest of historical accu- 
racy, therefore, it is well to inquire whether the evi- 
dence available on the point is sufficient to convict 
the Supreme Court of usurping an authority which 
the framers of the Constitution did not conceive to 
be within the judicial province. If the opinions of 
the majority of the Convention cannot be definitely 
ascertained, any categorical answer to the question 
proposed must rest upon the ''argument of silence," 
which, as Fustel de Coulanges warned the Germans 
long ago, is a dangerous argument. 



CHAPTER II. 

The Constitutional Convention of 1787 and 
Judicial Control. 

No proposition to confer directly upon the judi- 
ciary the power of passing upon the constitutionality 
of acts of Congress was submitted to the Convention. 
On this point a statement made in Chief Justice 
Clark's address, cited above, is misleading. The 
proposition to which he refers, and which formed a 
part of the Randolph plan, was to associate a cer- 
tain number of the judges with the executive in the 
exercise of a revisionary power over laws passed by 
Congress. This is obviously a different proposition. 
Indeed, some members of the Convention who fa- 
vored judicial control opposed the creation of such a 
council of revision. The question of judicial control, 
accordingly, did not come squarely before the Con- 
vention, in such form that a vote could be taken on 
it. 

How are we to know what was the intention of 

15 



l6 THE SUPREME COURT AND THE CONSTITUTION 

the framers of the Constitution in this matter? The 
only method is to make an exhaustive search in the 
documents of the Convention and in the writings, 
speeches, papers and recorded activities of its mem- 
bers. It is obviously impossible to assert that any 
such inquiry is complete, for new material, printed 
or in manuscript, may be produced at any moment. 
This essay therefore makes no claim to finality. 
It is designed to throw light on the subject and to 
suggest ways in which more light may be obtained. 

There were in all fifty-five members of the Con- 
vention who were present at some of its meetings. 
Of these at least one-third took little or no part in 
the proceedings or were of little weight or were exten- 
sively absent. Among these may be included: 
Blount, Brearley, Broom, Clymer, Fitzsimons, Gil- 
man, W. C. Houston, William Houstoun, Ingersoll, 
Lansing, Livingston, McClurg, Alexander Martin, 
Mifflin, Pierce and Yates. It is of course difficult 
to estimate the influence of the several members of 
the Convention, and between the extremes there are 
a few regarding whom there may reasonably be a 
difference of opinion. The preceding list is doubt- 
less open to criticism, but it may be safely asserted 



/ \3 



THE CONSTITUTIONAL CONVENTION OF 1787 17 

that a large majority of the men included in it were 
without any considerable influence in the framing of 
the Constitution. 

Of the remaining members there were (say) 
twenty-five whose character, ability, diligence and 
regularity of attendance, separately or in combina- 
tion, made them the dominant element in the Con- 
vention. These men were: 

Blair Franklin King Morris, R, Rutledge 

Butler Gerry Madison Paterson Sherman 

Dayton Gorham Martin, L. Pinckney, Charles Washington 

Dickinson Hamilton Mason Pinckney, C. C. Williamson 

Ellsworth Johnson Morris, G. Randolph Wilson 

This list, like the one given above, is tentative; and 
it is fair to say that, among those whose judgment is 
entitled to respect, there is no little difference of 
opinion about the weight of some of the men here 
enumerated. It can not be doubted, however, that 
the list includes the decided majority of the men who 
were most influential in giving the Constitution its 
form and its spirit. Among these men were the 
leaders, of whose words and activities we have the 
fullest records. 

Of these men, the seventeen whose names are 
italicized declared, directly or indirectly, for judicial 



1 8 THE SUPREME COURT AND THE CONSTITUTION 

control. Without intending to imply that the less 
influential members were divided on the question in 
the same ratio as these twenty-five, or that due 
respect should not be paid to the principle of simple 
majority rule, it is illumdnating to discover how many 
of this dominant group are foimd on record in favor 
of the proposition that the judiciary would in the 
natural course of things pass upon the constitution- 
ality of acts of Congress. The evidence of each 
man's attitude is here submitted, the names being 
arranged, as above, in their alphabetical order. 

John Blair, of Virginia, was a member of the Vir- 
ginia court of appeals which decided the case of 
Commonwealth v. Caton,^ in 1782, and he agreed 
with the rest of the judges ''that the court had power 
to declare any resolution or act of the legislature, 
or of either branch of it, to be imconstitutional and 
void." 2 Ten years later he was one of the three 
judges of the federal circuit court for the district 
of Pennsylvania who claimed that they could not 
perform certain duties imposed upon them by a law 

^ Thayer, Cases in Constitutional Law, vol. i, p. 55. 

2 That the decision coiild have been reached without invoking this 
power, as Mr. Boudin argues, loc. cit., p. 245, note i, does not affect 
the value of the decision as evidence of Blair's belief in the existence 
of the power. 

i 



k 



THE CONSTITUTIONAL CONVENTION OF 1787 19 

of Congress, because the duties were not judicial in 
nature and because under the law their acts would 
be subject to legislative or executive control. These 
judges — Blair, Wilson ^ and Peters — joined in a 
respectful letter of protest to President Washington, 
April 18, 1792, in which they declared that they held 
it to be their duty to disregard the directions of Con- 
gress rather than to act contrary to a constitutional 
principle.^ It may also be noted that, as a member 
of the federal Senate, Blair supported the Judiciary 
Act of 1789, which accorded to the Supreme Court 
the power to review and reverse or affirm the decis- 
ions of state cotirts denying the validity of federal 
statutes.^ 

John Dickinson^ of Delaware, is usually placed 
among the members of the Convention who did not 
recognize the power of the courts to pass upon the 
constitutionality of statutes; for in the debate on 
August 15, just after Mercer^ declared against judi- 
cial control, Dickinson said that "he was strongly 
impressed with the remark of Mr. Mercer as to the 

* Wilson, as we shall see later, had taken a strong stand, both in 
the constituent Convention and in the ratifying Pennsylvania con- 
vention, in favor of judicial control of legislation. Cf. infra, pp. 
14, 26. 2 Hayburn's Case, 2 Dallas, 409. ' Cf. infra, p. 44. 

* Cf, infra, p. 52. 



20 THE SUPREME COURT AND THE CONSTITUTION 

power of the Judges to set aside the law. He thought 
no such power ought to exist. He was at the same 
time at a loss what expedient to substitute." ^ Later, 
however, he accepted the principle of judicial con- 
trol, either because he thought it sound or because 
he cotild find no satisfactory substitute. In one of 
his "Fabius" letters, written in advocacy of the 
Constitution in 1788, he says: 

In the senate the sovereignties of the several states will be 
equally represented; in the house of representatives the 
people of the whole union will be equally represented ; and 
in the president and the federal independent judges, so 
much concerned in the execution of the laws and in the 
determination of their constitutionality, the sovereign- 
ties of the several states and the people of the whole union 
may be considered as conjointly represented.^ 

Whatever his personal preference may have been, he 
evidently understood that the new instrument im- 
plicitly empowered the federal judiciary to determine 
the constitutionality of laws; and he presents this 
implication to the public as a commendable feature 
of the Constitution. 

Oliver Ellsworth, of Connecticut, held that the 
federal judiciary, in the discharge of its normal fimc- 

1 Farrand, Records of the Federal Convention, vol. ii, p. 299. 

' Ford, Pamphlets on the Constitution of the United States, p. 184. 



THE CONSTITUTIONAL CONVENTION OF 1787 21 

tions, would declare acts of Congress contrary to 
the federal Constitution null and void. In the Con- 
necticut convention, called to ratify the federal 
Constitution, he was careful to explain this clearly 
to the assembled delegates.^ Later, he was chair- 
man of the Senate committee which prepared the 
Judiciary Act of 1789 and he took a leading part in 
the drafting and passage of that measure. ^ 

Elhridge Gerry, of Massachusetts. When, on June 
4, the proposition relative to a council of revision 
was taken into consideration by the Convention, 
Gerry expressed doubts 

whether the Judiciary ought to form a part of it, as they 
will have a stifficient check against encroachments on their 
own department by their exposition of the laws, which 
involved a power of deciding on their constitutionality. 
In some States the Judges had actually set aside laws as 
being against the Constitution. This was done, too, with 
general approbation. It was quite foreign from the nature 
of the office to make them judges of the policy of public 
measures.^ 

During the debate in the first Congress on the 
question whether the President had the constitu- 
tional right to remove federal officers without the 
consent of the Senate, Gerry more than once urged 

^ Cf. infra, p. 71. ^ Cf. infra, p. 44. ^ Parrand, vol. i, p. 97. 



22 THE SUPREME COURT AND THE CONSTITUTION 

that the judiciary was the proper body to decide 
the issue finally. On June i6, 1789, he said: 

Are we afraid that the President and Senate are not suffi- 
ciently informed to know their respective duties? .... If 
the fact is, as we seem to suspect, that they do not imder- 
stand the Constitution, let it go before the proper tribiuial; 
the judges are the constitutional umpires on such ques- 
tions .^ 

Speaking on the same subject again, he said: 

If the power of making declaratory acts really vests in Con- 
gress and the judges are bound by our decisions, we may 
alter that part of the Constitution which is secured from 
being amended by the first article; we may say that the 
ninth section of the Constitution, respecting the migration 
or importation of persons, does not extend to negroes; that 
the word persons means only white men and women. We 
then proceed to lay a duty of twenty or thirty dollars per 
head on the importation of negroes. The merchant does 
not construe the Constitution in the manner that we have 
done. He therefore institutes a suit and brings it before 
the supreme judicature of the United States for trial. 
The judges, who are bound by oath to support the Consti- 
tution, declare against this law; they would therefore 
give judgment in favor of the merchant .^ 

Alexander Hamilton, of New York. In Number 
78 of The Federalist, written in defence 0/ the Consti- 
tution, and designed to make that instrument accept- 

1 Annals of Congress, vol. i, p. 491. 

2 Elliot's Debates J vol. iv, p. 393. 



THE CONSTITUTIONAL CONVENTION OP 1787 23 

able to the electorate, Hamilton gave a full exposi- 
tion of his view of the new system. His state- 
ment of the principle of judicial control so thoroughly 
covers the ground that it deserves quotation at 
length : 

The complete independence of the courts of justice is 
peculiarly essential in a limited constitution. By a lim- 
ited constitution I understand one which contains cer- 
tain specified exceptions to the legislative authority; such, 
for instance, as that it shall pass no bills of attainder, no 
ex post facto laws, and the like. Limitations of this 
kind can be preserved in practice no other way than 
through the medium of the courts of justice; whose duty it 
must be to declare all acts contrary to the manifest tenor of 
the Constitution void. Without this, all the reservations of 
particular rights or privileges would amount to nothing. 

Some perplexity respecting the right of the courts to 
pronounce legislative acts void, because contrary to the 
Constitution, has arisen from an imagination that the doc- 
trine would imply a superiority of the judiciary to the 
legislative power. It is urged that the authority which 
can declare the acts of another void must necessarily be 
superior to the one whose acts may be declared void. As 
this doctrine is of great importance in all the American 
constitutions, a brief discussion of the grounds on which 
it rests can not be unacceptable. 

/^"There is no position which depends on clearer principles 
than that every act of a delegated authority contrary to 
the tenor of the commission under which it is exercised is 
void. No legislative act, therefore, contrary to the Con- 
stitution, can be vaHd. To deny this would be to affirm 



24 THE SUPREME COURT AND THE CONSTITUTION 

that the deputy is greater than his principal ; that the serv- 
ant is above his master; that the representatives of the 
people are superior to the people themselves; that men, 
acting by virtue of powers, may do not only what their 
powers do not authorize, but what they forbid. 

If it be said that the legislative body are themselves 
the constitutional judges of their own powers, and that 
the construction they put upon them is conclusive upon 
the other departments, it may be answered that this can 
not be the natural presumption, where it is not to be col- 
lected from any particular provisions in the Constitution. 
It is not otherwise to be supposed that the Constitution 
could intend to enable the representatives of the people 
to substitute their will to that of their constituents. It 
is far more rational to suppose that the courts were 
designed to be an intermediate body between the people 
and the legislature, in order, among other things, to keep 
the latter within the limits assigned to their authority. 
The interpretation of the laws is the proper and peculiar 
province of the courts. A constitution is, in fact, and 
must be, regarded by the judges as a fundamental law. 
It must therefore belong to them to ascertain its meaning, 
as well as the meaning of any particular act proceeding 
from the legislative body. If there should happen to be 
an irreconcilable variance between the two, that which has 
the superior obligation and validity ought, of course, to 
be preferred; in other words, the constitution ought to be 
preferred to the statute, the intention of the people to 
the intention of their agents. 

Nor does this conclusion by any means suppose a supe- 
riority of the judicial to the legislative power. It only 
supposes that the power of the people is superior to both; 
and that where the will of the legislature, declared in its 



THE CONSTITUTIONAL CONVENTION OF 1787 25 

statutes, stands in opposition to that of the people, declared 
in the Constitution, the judges ought to be governed by 
the latter, rather than the former. They ought to regu- 
late their decisions by the fundamental laws, rather than 
those which are not fundamental. 

This exercise of judicial discretion, in determining 
between two contradictory laws, is exemplified in a famil- 
iar instance. It not uncommonly happens that there are 
two statutes existing at one time, clashing in whole or in 
part with each other, and neither of them containing any 
repealing clause or expression. In such a case it is the 
province of the courts to liquidate and fix their meaning 
and operation : So far as they can by any fair construction 
be reconciled to each other, reason and law conspire to 
dictate that this should be done: Where this is impracti- 
cable it becomes a matter of necessity to give effect to one, 
in exclusion of the other. The rule which has obtained in 
the courts for determining their relative validity is that 
the last in order of time shall be preferred to the first. 
But this is a mere rule of construction, not derived from 
any positive law, but from the nature and reason of the 
thing. It is a rule not enjoined upon the courts by legisla- 
tive provision, but adopted by themselves, as consonant to 
truth and propriety, for the direction of their conduct as 
interpreters of the law. They thought it reasonable that, 
between the interfering acts of an equal authority, that 
which was the last indication of its will should have the 
preference. 

But in regard to the interfering acts of a superior and 
subordinate authority, of an original and derivative power, 
the nature and reason of the thing indicate the converse 
of that rule as proper to be followed. They teach us that 
the prior act of a superior ought to be preferred to the 



26 THE SUPREME COURT AND THE CONSTITUTION 

subsequent act of an inferior and subordinate authority; 
and that, accordingly, whenever a particular statute con- 
travenes the Constitution, it will be the duty of the judi- 
cial tribunals to adhere to the latter and disregard the 
former. 

It can be of no weight to say that the courts, on the pre- 
tence of a repugnancy, may substitute their own pleasiu-e 
to the constitutional intentions of the legislature. This 
might as well happen in the case of two contradictory 
statutes; or it might as well happen in every adjudication 
upon any single statute. The courts must declare the 
sense of the law; and if they should be disposed to exercise 
Will instead of Judgment, the consequence would equally 
be the substitution of their pleasure to that of the legis- 
lative body. The observation, if it prove anything, 
would prove that there ought to be no judges distinct 
from that body. 

If then the coiu-ts of justice are to be considered as the 
bulwarks of a limited constitution against legislative 
encroachments, this consideration will afford a strong argu- 
ment for the permanent tenure of judicial offices, since 
nothing will contribute so much as this to that independent 
spirit in the judges which must be essential to the faithful 
performance of so arduous a duty. 

This independence of the judges is equally requisite to 
guard the Constitution and the rights of individuals from 
the effects of those ill humors which the arts of designing 
men, or the influence of particular conjunctiu*es, some- 
times disseminate among the people themselves and which, 
though they speedily give place to better information and 
more deliberate reflection, have a tendency, in the mean 
time, to occasion dangerous innovations in the govern- 
ment and serious oppressions of the minor party in the 



THE CONSTITUTIONAL CONVENTION OF 1787 27 

community. Though I trust the friends of the proposed 
Constitution will never concur with its enemies in ques- 
tioning that fundamental principle of republican govern- 
ment which admits the right of the people to alter or 
abolish the established Constitution whenever they find it 
inconsistent with their happiness; yet it is not to be in- 
ferred from this principle that the representatives of the 
people, whenever a momentary inclination happens to lay 
hold of a majority of their constituents incompatible with 
the provisions in the existing Constitution, would, on that 
account, be justifiable in a violation of those provisions; 
or that the courts would be under a greater obligation to 
connive at infractions in this shape than when they had 
proceeded wholly from the cabals of the representative 
body. Until the people have, by some solemn and author- 
itative act, annulled or changed the established form, it is 
binding upon themselves collectively, as well as individu- 
ally; and nopresimiption,or even knowledge, of their senti- 
ments can warrant their representatives in a departure 
from it, prior to such an act. But it is easy to see that it 
would require an uncommon portion of fortitude in the 
judges to do their duty as faithful guardians of the Consti- 
tution where legislative invasions of it had been insti- 
gated by the major voice of the community. 

But it is not with a view to infractions of the Constitu- 
tion only that the independence of the judges may be an 
essential safeguard against the effects of occasional ill 
humors in the society. These sometimes extend no far- 
ther than to the injury of the private rights of particular 
classes of citizens, by unjust and partial laws. Here also 
the firmness of the judicial magistracy is of vast importance 
in mitigating the severity and confining the operation of 
such laws. It not only serves to moderate the immediate 



1/ 



28 THE SUPREME COURT AND THE CONSTITUTION 

mischiefs of those which may have been passed, but it 
operates as a check upon the legislative body in passing 
them; who, perceiving that obstacles to the success of an 
iniquitous intention are to be expected from the scruples 
of the courts, are in a manner compeUed, by the very 
motives of the injustice they meditate, to qualify their 
attempts. This is a circumstance calculated to have more 
influence upon the character of our governments than but 
a few may be aware of. The benefits of the integrity and 
moderation of the judiciary have already been felt in more 
states than one; and though they may have displeased 
those whose sinister expectations they may have dis- 
appointed, they must have commanded the esteem and 
applause of all the virtuous and disinterested. Consid- 
erate men, of every description, ought to prize whatever 
will tend to beget or fortify that temper in the courts; as 
no man can be sure that he may not be to-morrow the vic- 
tim of a spirit of injustice, by which he may be a gainer 
to-day. And every man must now feel that the inevitable 
tendency of such a spirit is to sap the foundations of pub- 
lic and private confidence, and to introduce in its stead 
universal distrust and distress. 

That inflexible and uniform adherence to the rights of 
the Constitution, and of individuals, which we perceive 
to be indispensable in the coiirts of justice, can certainly 
not be expected from judges who hold their offices by a 
temporary commission. Periodical appointments, how- 
ever regulated, or by whomsoever made, would, in some 
way or other, be fatal to their necessary independence. 
If the power of making them was committed either to the 
executive or legislature, there would be danger of an 
improper complaisance to the branch which possessed it: 
if to both, there would be an unwillingness to hazard the 



THE CONSTITUTIONAL CONVENTION OP 1787 29 

displeasure of either; if to the people, or to persons chosen 
by them for the special purpose, there would be too great 
a disposition to consult popularity to justify a reliance 
that nothing would be consulted but the Constitution and 
the laws. 

Rufus King, of Massachusetts. In the discussion 
of the proposed council of revision which took place 
in the Convention on June 4, King took the same 
position as Gerry, observing "that the judges ought 
to be able to expound the law as it should come 
before them free from the bias of having participated 
in its formation."! According to Pierce's notes he 
said that he 

was of opinion that the judicial ought not to join in the 
negative of a law because the judges will have the expound- 
ing of those laws when they come before them; and they 
will no doubt stop the operation of such as shall appear 
repugnant to the constitution. ^ 

James Madison, of Virginia. That Madison 
believed in judicial control over legislation is unques- 
tionable, but as to the exact nature and extent of 
that control he was in no little confusion. His fear 
of the legislature is expressed repeatedly in his writ- 
ings, and he was foremost among the men who sought 
to establish a revisionary council of which the 
1 Parrand, vol. i, p. 98. 2 Ihid., p. 109. 



/■ 



30 THE SUPREME COURT AND THE CONSTITUTION 

judges should form a part. In the Convention he 
said 

Experience in all the states has evinced a powerful ten- 
dency in the legislature to absorb all power into its vor- 
tex. This was the real sotirce of danger to the American 
constitutions ; and suggested the necessity of giving every 
defensive authority to the other departments that was 
consistent with republican principles.^ 

The association of the judges with the executive, he 
contended, "would be useful to the judiciary depart- 
ment by giving it an additional opportimity of 
defending itself against legislative encroachments."^ 
He was evidently greatly disappointed by the refusal 
of the Convention to establish a revisionary council ; 
for, in after years, he said that ''such a control, 
restricted to constitutional points, besides giving 
greater stability and system to the rules of expound- 
ing the instrument would have precluded the ques- 
tion of a judiciary annulment of legislative acts."^ 
From the first, however, he accepted judicial con- 
trol only with limitations; and complete judicial 
paramountcy over the other branches of the federal 
government he certainly deprecated. When it was 
proposed to extend the jurisdiction of the Supreme 

* Farrand, vol. ii, p. 74. 2 jj^^^ 

' Writifigs of James Madison, vol. viii, p. 406. 



THE CONSTITUTIONAL CONVENTION OF 1787 31 

Court to cases arising under the Constitution as well 
as under the laws of the United States, he 

doubted whether it was not going too far to extend the 
jurisdiction of the court generally to cases arising under 
the Constitution and whether it ought not to be limited 
to cases of a judiciary nature. The right of expounding 
the Constitution in cases not 6i this nature ought not to be 
given to that department.^ 

The refusal of the Convention to establish a coun- 
cil of revision, in his opinion, left the judiciary para- 
mount, which was in itself undesirable and not 
intended by the framers of the Constitution. In a 
comment on the proposed Virginia constitution of 
1788 he wrote, in that year: 

In the state constitutions and indeed in the federal one 
also, no provision is made for the case of a disagreement in 
expounding them [the laws], and as the courts are gener- 
ally the last making the decision, it results to them, by refus- 
ing or not refusing to execute a law, to stamp it with its final 
character. This makes the Judiciary Department para- 
mount in fact to the Legislature, which was never intended 
and can never be proper.^ 

The right of the courts to pass upon constitutional 

questions in cases of a judicial nature he fully 

acknowledged; but this did not, in his mind, preclude 

the other departments from declaring their senti- 

^ Farrand, vol. ii, p. 430. 2 Writings, vol. v, pp. 293, 294. 



32 THE SUPREME COURT AND THE CONSTITUTION 

ments on points of constitutionality and from mark- 
ing out the limits of their own powers. This view 
he expressed in the House of Representatives (first 
Congress) when the question of the President's 
removing power was under debate: 

The great objection. . .is that the legislature itself has no 
right to expound the Constitution; that wherever its 
meaning is doubtful, you must leave it to take its course, 
until the judiciary is called upon to declare its meaning. 
I acknowledge, in the ordinary course of government, 
that the exposition of the laws and Constitution devolves 
upon the judicial; but I beg to know upon what principle 
it can be contended that any one department draws from 
the Constitution greater powers than another, in marking 
out the limits of the powers of the several departments. 
The Constitution is the charter of the people in the gov- 
ernment; it specifies certain great powers as absolutely 
granted, and marks out the departments to exercise them. 
If the constitutional boundary of either be brought into 
question I do not see that any one of these independent 
departments has more right than another to declare their 
sentiments on that point. 

Perhaps this is an admitted case. There is not one 
government on the face of the earth, so far as I recollect — 
there is not one in the United States — ^in which provision 
is made for a particular authority to detennine the limits 
of the constitutional division of power between the 
branches of the government. In all systems there are 
points which must be adjusted by the departments them- 
selves, to which no one of them is competent. If it cannot 
be determined in this way, there is no resource left but the 



THE CONSTITUTIONAL CONVENTION OF 1787 33 

will of the community, to be collected in some mode to 
be provided by the Constitution, or one dictated by the 
necessity of the case. It is, therefore, a fair question, 
whether this great point may not as well be decided, at 
least by the whole legislature, as by part — by us, as well 
as by the executive or the judicial. As I think it will be 
equally constitutional, I cannot imagine it will be less safe 
that the exposition should issue from the legislative 
authority than any other; and the more so, because it 
involves in the decision the opinions of both of those 
departments whose powers are supposed to be affected 
by it. Besides, I do not see in what way this question 
could come before the judges to obtain a fair and solemn 
decision; but even if it were the case that it could, I should 
suppose, at least while the government is not led by pas- 
sion, disturbed by faction, or deceived by any discolored 
medium of sight, but while there is a desire in all to see 
and be guided by the benignant ray of truth, that the 
decision may be made with the most advantage by the 
legislature itself.^ 

Madison's view on the point may be summed up as 
follows: In cases of a political nature involving 
controversies between departments, each depart- 
ment enjoys a power of interpretation for itself 
(a doctrine which Marshall would not have denied) ; 
in controversies of a judicial nature arising under the 
Constitution the Supreme Court is the tribunal of 
last resort; in cases of federal statutes which are 

held to be invalid by nullifying states the Supreme 
1 Elliot's Debates, vol. iv, pp. 382, 383. 



34 THE SUPREME COURT AND THE CONSTITUTION 

Court possesses the power to pass finally upon con- 
stitutionality.^ 

Luther Martin, of Maryland, although he opposed 
the proposition to form a revisionary council by 
associating judges with the executive, was never- 
theless firmly convinced that unconstitutional laws 
would be set aside by the judiciary. During the 
debate on July 21 he said: I 

A knowledge of mankind and of Legislative afEairs can- 
not be presumed to belong in a higher degree to the Judges 
than to the legislature. And as to the constitutionaHty 
of laws, that point will come before the judges in their 
proper official character. In this character they have a 
negative on the laws. Join them with the executive in 
the revision and they will have a double negative. It is 
necessary that the supreme judiciary should have the 
confidence of the people. This will soon be lost, if they 
are employed in the task of remonstrating against popular 
measures of the legislature.^ 

George Mason, of Virginia, favored associating the 
judges with the executive in revising laws. He 
recognized that the judges would have the power to 
declare rmconstitutional statutes void, but he re- 
garded this control as insufficient. He said: 

1 Cf. Madison's letter of August, 1830, to Everett; Writings, vol. 
ix, p. 383. 

2 Farrand, vol. ii, p. 76. For further evidence of Martin's attitude, 

c/. infra, p. 70. I 



THE CONSTITUTIONAL CONVENTION OP 1787 35 

Notwithstanding the precautions taken in the constitu- 
tion of the legislature, it would so much resemble that of 
the individual states, that it must be expected frequently 
to pass unjust and pernicious laws. This restraining 
power was therefore essentially necessary. It would have 
the effect not only of hindering the final passage of such 
laws, but would discourage demagogues from attempting 
to get them passed. It had been said (by Mr. L. Martin) 
that if the judges were joined in this check on the laws, 
they would have a double negative, since in their exposi- 
tory capacity of judges they would have one negative. 
He would reply that in this capacity they could impede in 
one case only the operation of laws. They could declare 
an unconstitutional law void. But with regard to every 
law, however unjust, oppressive or pernicious, which did 
not come plainly under this description, they would be 
under the necessity as judges to give it a free course. He 
wished the further use to be made of the judges of giving 
aid in preventing every improper law. Their aid will be 
the more valuable as they are in the habit and practice of 
considering laws in their true principles, and in all their 
consequences.^ 

Gouverneur Morris^ of Pennsylvania, declared, in 
the debate on July 21, that some check on the legis- 
lature was necessary; and he "concurred in thinking 
the public liberty in greater danger from legislative 
usurpations than from any other source."^ He was 
apprehensive lest the addition of the judiciary to 
the executive in the council of revision would not be 

» Farrand, vol. ii, p. 78. ' Ihid. pp. 75 et seg. 



36 THE SUPREME COURT AND THE CONSTITUTION 

enough to hold the legislature in check. Later, when 
Dickinson questioned the right of the judiciary to 
set aside laws, Morris said: 

He could not agree that the judiciary, which was a part of 
the executive, should be bound to say that a direct viola- 
tion of the Constitution was law. A control over the 
legislature might have its inconveniences. But view the 
danger on the other side .... Encroachments of the popu- 
lar branch of the government ought to be guarded against. i 

This view he later confirmed in the debate on the 
repeal of the Judiciary Act of 1801, when he said: 

It has been said, and truly too, that governments are made 
to provide against the f olHes and vices of men .... Hence 
checks are required in the distribution of the power among 
those who are to exercise it for the benefit of the people. 
Did the people of America vest all power in the Legisla- 
ture? No ; they had vested in the judges a check intended 
to be efficient — a check of the first necessity, to prevent an 
^ invasion of the Constitution by unconstitutional laws — a 
check which might prevent any faction from intimidating 
or annihilating the tribunals themselves. 2 

William Paterson, of New Jersey. There is per- 
haps no finer statement of the doctrine of judicial 
control than that made by Paterson as Associate 
Justice of the Supreme Court in the case of Van 
Home's Lessee v. Dorrance (2 Dallas 304) decided 

* Farrand, p. 299. 

' Benton, Abridgment of Debates in Congress, vol. ii, p. 550. 



THE CONSTITUTIONAL CONVENTION OF 1787 37 

in 1795. In this case the litigant's title to property- 
depended upon the validity of an act of the State of 
Pennsylvania and in rendering the opinion Justice 
Paterson inquired whether the legislature had the 
power to enact the law in question under the consti- 
tution of the commonwealth. He cited the famous 
passage from Blackstone on the sovereign power and 
jurisdiction of Parliament and compared that body 
with our limited legislatures. He said, in the 
course of his long opinion: 

It is evident that in England the authority of the Par- 
liament runs without limits and rises above control. It 
is difficult to say what the constitution of England is, 
because, not being reduced to written certainty and pre- 
cision, it lies entirely at the mercy of the Parliament: It 
bends to every governmental exigency; it varies and is 
blown about by every breeze of legislative humor or poli- 
tical caprice. Some of the judges in England have had 
the boldness to assert that an act of Parliament, made 
against natural equity, is void; but this opinion contra- 
venes the general position, that the validity of an act of 
Parliament cannot be drawn into question by the judicial 
department : It cannot be disputed, and must be obeyed. 
The power of Parliament is absolute and transcendent; 
it is omnipotent in the scale of political existence. Be- 
sides, in England there is no written constitution, no fun- 
damental law, nothing visible, nothing real, nothing cer- 
tain, by which a statute can be tested. In America the 
case is widely different: Every State in the Union has 



38 THE SUPREME COURT AND THE CONSTITUTION 

its Constitution reduced to written exactitude and pre- 
cision. 

What is a Constitution? It is the form of government, 
delineated by the mighty hand of the people, in which 
certain first principles of fundamental laws are established. 
The Constitution is certain and fixed; it contains the per- 
manent will of the people, and is the supreme law of the 
land; it is paramount to the power of the legislature, and 
can be revoked or altered only by the authority that made 
it. The life-giving principle and the death-doing stroke 
must proceed irom the same hand. What are legisla- 
tures? Creattures of the Constitution; they owe their 
existence to the Constitution: they derive their powers 
from the Constitution. It is their commission; and, 
therefore, all their acts must be conformable to it, or 
else they wiU be void. The Constitution is the work or 
will of the people themselves, in their original, sovereign, 
and unlimited capacity. Law is the work or will of the 
legislature in their derivative and subordinate capacity. 
The one is the work of the Creator, and the other of the 
creature. The Constitution fixes limits to the exercise 
of legislative authority and prescribes the orbit within 
which it must move. In short, the Constitution is the 
sun of the political system, around which all legislative, 
executive and judicial bodies must revolve. Whatever 
may be the case in other countries, yet in this there can be 
no doubt, that every act of the legislature repugnant to 
the Constitution is absolutely void. 

In the second article of the Declaration of Rights, which 
was made part of the late Constitution of Pennsylvania, 
it is declared, "That all men have a natural and unaHen- 
able right to worship Almighty God, according to the dic- 
tates of their own consciences and understanding; and that 



THE CONSTITUTIONAL CONVENTION OP 1787 39 

no man ought or of right can be compelled to attend any 
religious worship, or erect or support any place of worship, 
or maintain any ministry, contrary to, or against, his own 
free will and consent; nor can any man who acknowledges 
the being of a God be justly deprived or abridged of any 
civil right as a citizen, on account of his reHgious senti- 
ments, or peculiar mode of religious worship; and that no 
authority can, or ought to be, vested in, or assumed by, 
any power whatever, that shall, in any case, interfere 
with, or in any manner control, the right of conscience in 
the free exercise of reHgious worship.'' (Dec. of Rights, 
Art. 2.) 

In the thirty-second section "of the same Constitution 
it is ordained: "that all elections, whether by the people 
or in general assembly, shall be by ballot, free and volun- 
tary." (Const. Penn., Sect. 32.) 

Could the legislature have annulled these articles, 
respecting religion, the rights of conscience, and elections 
by ballot? Surely no. As to these points there was no 
devolution of power; the authority was purposely with- 
held, and reserved by the people to themselves. If the 
legislature had passed an act declaring that, in future, 
there should be no trial by jury, would it have been oblig- 
atory? No: It would have been void for want of juris- 
diction, or constitutional extent of power. The right of 
trial by jury is a fundamental law, made sacred by the 
Constitution, and cannot be legislated away. The Con- 
stitution of a State is stable and permanent, not to be 
worked upon by the temper of the times, nor to rise and 
fall with the tide of events : notwithstanding the competi- 
tion of opposing interests, and the violence of contending 
parties, it remains firm and immovable, as a mountain 
amidst the strife of storms, or a rock in the ocean amidst 



40 THE SUPREME COURT AND THE CONSTITUTION 

the raging of the waves. I take it to be a clear position 
that if a legislative act oppugns a constitutional principle 
the former must give way, and be rejected on the score of 
repugnance. I hold it to be a position equally clear and 
sound that, in such case, it will be the duty of the court 
to adhere to the Constitution, and to declare the act null 
and void. The Constitution is the basis of legislative 
authority; it Ues at the foundation of all law, and is a rule 
and commission by which both legislators and judges are 
to proceed. It is an important principle, which, in the 
discussion of questions of the present kind, ought never 
to be lost sight of, that the judiciary in this country is 
not a subordinate, but co-ordinate branch of the govern- 
ment 

Edmund Randolph, of Virginia, does not seem to 
have expressed himself in the Convention on the 
subject of judicial control over congressional legis- 
lation. In the plan which he presented, however, 
provision was made for establishing a council of 
revision, composed of the executive and a conven- 
ient number of the judiciary, "with authority to 
examine every act of the National Legislature before 
it shall operate." He must, therefore, have been 
convinced of the desirability of some efficient control 
over the legislative department. Subsequently, as 
attorney-general, when it became his duty to repre- 
sent the government in Hayb urn's case^ and he was 

^ 2 Dallas, 409. 



THE CONSTITUTIONAL CONVENTION OP 1787 41 

moving for a mandamus to compel the circuit court 
for the district of Pennsylvania to execute a law 
under which the judges had declined to act on the 
ground of its unconstitutionality, Randolph accepted 
the view of the judges that they were not consti- 
tutionally bound to enforce a law which they deemed 
beyond the powers of Congress. The meager ab- 
stract of his argument before the Supreme Court in 
Dallas's Reports gives no hint of its precise character; 
but in a letter to Madison, dated August 12, 1792, 
Randolph said: ''The sum of my argument was an 
admission of the power to refuse to execute, but the 
unfitness of the occasion." ^ That he approved the 
provision of the Judiciary Act of 1789, giving the 
Supreme Court appellate jurisdiction to review and 
reverse or affirm a decision of a state court denying 
the constitutionality of a federal statute, is apparent 
from his report to Congress on the judicial system in 
1790. After enumerating the instances in which 
cases might be carried up to the Supreme Court from 
the state courts, he says: ''That the avenue to the 
federal courts ought, in these instances, to be 
unobstructed is manifest." The only question 
with which he was concerned was: "In what stage 

^ Moncure Conway, Edmund Randolph, p. 145. 



42 THE SUPREME^COURT AND THE CONSTITUTION 

and by what form shall their interposition be 
prayed?"^ 

Hugh Williamson, of North Carolina, certainly 
believed in judicial control over federal legislation; 
for, in the debate on the proposition to insert a clause 
forbidding Congress to pass ex post facto laws, he 
said: "Such a prohibitory clause is in the constitu- 
tion of North Carolina, and, though it has been vio- 
lated, it has done good there and may do good here, 
because the judges can take hold of it."^ it is 
obvious that the only way in which the judges can 
"take hold of " ^x post facto laws is by declaring them 
void. 

James Wilson^ of Pennsylvania, expressed himself 
in favor of judicial control in the course of the debate 
on July 21, when the proposition to associate the 
national judiciary with the executive in the re vis- 
ionary power was again being considered. He de- 
clared : 

The Judiciary ought to have an opportunity of remon- 
strating against projected encroachments on the people 
as well as on themselves. It had been said that the Judges 
as expositors of the Laws would have an opportunity of 
defending their constitutional rights. There was weight 

^ American State Papers, Class X, Miscellaneous, vol. i, p. 23. 
* Farrand, vol. ii, p. 376. 



THE CONSTITUTIONAL CONVENTION OP 1787 43 

in this observation; but this power of the Judges did not go 
far enough. Laws may be unjust, may be unwise, may 
be dangerous, may be destructive; and yet not be so un- 
constitutional as to justify the Judges in refusing to give 
them effect. Let them have a share in the Revisionary 
power, and they will have an opportunity of taking notice 
of these characters of a law, and of counteracting, by the 
weight of their opinions, the improper views of the Legis- 
lature.^ 

Speaking again, on August 23, in favor of giving 
the national legislature a negative over state legis- 
lation, he said that he 

considered this as the keystone wanted to complete the 
wide arch of Government we are raising. The power of 
self-defence had been urged as necessary for the State 
Governments. It was equally necessary for the General 
Government. The firmness of Judges is not of itself suffi- 
cient. Something further is requisite. It will be better 
to prevent the passage of an improper law than to declare 
it void when passed.^ 

The rejection of the plan to establish a revisionary 
council did not lead Wilson to infer that thereby 
the right of the court to pass upon the constitution- 
ality of- statutes was denied. On the contrary, in 
the debates in the Pennsylvania ratifying conven- 
tion he declared that the proposed Constitution 

1 Farrand, vol. ii, p. 73. 2 jj^{^^ p, 391. 



44 THE SUPREME COURT AND THE CONSTITUTION 

empowered the judges to declare unconstitutional 
enactments of Congress null arid void.^ 

Examination of the speeches, papers and docu- 
ments of the influential members of the Convention 
enumerated above fails to disclose any further direct 
declarations in favor of the principle of judicial 
review of legislation. However, there is reasonably- 
satisfactory evidence that three other members of 
this group understood and indorsed the doctrine. 

William Johnson, of Connecticut, Robert Morris ^ 
of Pennsylvania, and George Washington, The evi- 
dence of their opinions is their approval of the 
Judiciary Act of 1789. Section 25 of that act 
provided : 

A final judgment or decree in any suit, in the highest court 
of law or equity of a state in which a decision in the suit 
could be had, where is drawn in question the validity of a 
treaty or statute of, or an authority exercised under, the 
United States, and the decision is against their validity; 
... or where is drawn in question the construction of any 
clause of the Constitution, or of a treaty or statute of, or 
commission held under, the United States, and the decis- 
ion is against the title, right, privilege or exemption spe- 
cially set up or claimed by either party, under such clause 
of the said Constitution, treaty, statute or commission, — 
may be reexamined and reversed or affirmed in the 
Supreme Court of the United States upon a writ of error. 

1 Cf. infra, p. 71. 



THE CONSTITUTIONAL CONVENTION OF 1787 45 

In other words : the Supreme Court may review and 
affirm a decision of a state court holding unconsti- 
tutional a statute of the United States. It surely is 
not unreasonable to assume that the men who estab- 
lished this rule beheved that the Supreme Court 
could declare acts of Congress unconstitutional inde- 
pendently of decisions in lower state courts. Indeed, 
it would seem absurd to assume that an act of Con- 
gress might be annulled by a state court with the 
approval of the Supreme Court, but not by the Su- 
preme Court directly. 

Wilham Johnson and Robert Morris were mem- 
bers of the first Senate and voted in favor of the 
Judiciary Act;^ and Washington, as president, 
approved the measure. 

In addition to these eminent members of the Con- 
vention who directly or indirectly supported the 
doctrine of judicial control over legislation there were 
several members of minor influence who seem to have 
understood and approved it. There is direct or 
indirect evidence in the following cases. 

Abraham Baldwin, of Georgia, had no generous 
faith in the probity of a legislature based on a widely 
extended suffrage. In speaking on the composition 

1 Annals of Congress, vol. i, p. 51. 



46 THE SUPREME COURT AND THE CONSTITUTION 

of the Senate, on June 29, he said: ''He thought the 
second branch ought to be the representation of 
property, and that in forming it, therefore, some 
reference ought to be had to the relative wealth of 
their constituents and to the principles on which 
the Senate of Massachusetts was constituted." ^ 
Baldwin does not seem to have spoken on the sub- 
ject of the judicial control in the Convention; but 
two years later, on June 19, 1789, he participated in 
the discussion of the bill constituting the Depart- 
ment of Foreign Affairs. The point at issue was 
whether the President could remove alone or only 
with the consent of the Senate; and some mem.- 
bers of the House of Representatives held that 
this was a judicial question. To this Baldwin 
replied : 

Gentlemen say it properly belongs to the Judiciary to 
decide this question. Be it so. It is their province to 
decide upon our laws and if they find this clause to be 
unconstitutional, they will not hesitate to declare it so; 
and it seems to be a very diflScult point to bring before 
them in any other way. Let gentlemen consider them- 
selves in the tribunal of justice called upon to decide this 
question on a mandamus. What a situation! almost too 
great for human nattire to bear, they would feel great 
relief in having had the question decided by the repre- 

1 Farrand, vol. i, p. 469. 



THE CONSTITUTIONAL CONVENTION OF 1787 47 

sentatives of the people. Hence, I conclude, they also 
will receive our opinion kindly. 1 

Here is a direct statement that it is the duty of the 
judges to pass upon the constitutionality of statutes; 
and the statute in question was not one involving 
an encroachment upon the sphere of the judiciary 
but one touching the respective powers of the Presi- 
dent and Senate. Baldwin here seems to think, 
however, that the Court would, and ought to, receive 
with gratitude the expressed opinion of the House of 
Representatives. Such an opinion, he evidently 
thought, would aid the judges in reaching a decision 
but would not be binding upon them. In his later 
years, however, after the struggle between the Fed- 
eralists and the Jeffersonians for the control of the 
national government had begun, Baldwin appears to 
have retracted his earlier view ; for in a debate in the 
Senate concerning the powers of the presidential 
electors, in January, 1800, he said: 

Suppose either of the other branches of the government, 
the Executive or the Judiciary or even Congress, should be 
guilty of taking steps which are unconstitutional, to whom 
is it submitted or who has control over it except by 
impeachment? The Constitution seems to have equal 
confidence in all the branches on their own proper ground, 

^ Annals of Congress, vol. i, p. 582. 



48 THE SUPREME COURT AND THE CONSTITUTION 

and for either to arrogate superiority, or a claim to greater 
confidence, shows them in particular to be unworthy of it, 

as it is in itself directly unconstitutional.^ 

It is small wonder that Baldwin thought the powers 
of the judiciary one of the questions that the Con- 
vention had left unsettled ; ^ but his clear statement on 
June 19, 1789, may reasonably be taken to represent 
vhis understanding of the power conferred on the 
judiciary by the Constitution. At that time, at 
least, he believed it a function of the judiciary to 
pass upon the constitutionality of statutes. 

Richard Bassett, of Delaware, was a member of the 
Senate committee which introduced the Judiciary 
Act of 1789, and he voted for the measure.^ Bassett 
was also one of Adams's Federalist judges, appointed 
under the act of February 13, 1801; and when the 
Jeffersonians repealed the law he joined several of his 
colleagues in a protest against the repeal, on the 
ground that it was an impairment of the rights se- 
cured to them as judicial officers under the Constitu- 
tion. In a memorial to Congress the deposed judges 
declared that they were 

compelled to represent it as their opinion that the rights 
secured to them by the Constitution, as members of the 

1 Farrand, vol. iii, p. 383. ^ im^ p. 370. Cj, infra, p. 66. 

^Annals oj Congress, vol. i, pp. 18, 51, 



THE CONSTITUTIONAL CONVENTION OF 1787 49 

judicial department, have been impaired The right of 

the undersigned to their compensation . . . involving a per- 
sonal interest, will cheerfully be submitted to judicial 
examination and decision, in such manner as the wisdom 
and impartiality of Congress may prescribe.^ 

The memorialists proposed that their rights should 
be decided by the judicial department ; and such a 
decision would have involved an inquiry regarding 
the constitutionality of the repeal of the Judiciary Act 
of 1 80 1. 2 That Bassett believed the repeal unconsti- 
tutional, as to the abolition of his judicial functions 
and salary, and held the judiciary to be the proper 
authority for deciding the point, is quite evident. 

George Wythe, of Virginia, was a member of the 
Virginia court of appeals which decided the case of 
Commonwealth v. Caton ^ ini 782 . Justice Wythe, in 
his opinion, referred to the practice of certain English 
chancellors, who had defended the rights of subjects 
against the rapacity of the crown, and exclaimed: 

If the whole legislature, an event to be deprecated, should 
attempt to overleap the bounds prescribed to them by the 
people, I, in administering the public justice of the coun- 
try, will meet the united powers at my seat in this tribunal ; 

1 American State Papers, Class X, Miscellaneous, vol. i, p. 340. 

2 A proposition to make provision for submitting the case to 
judicial determination was defeated in the House on January 27, 
1803. Annals of Congress, Second Session, 7th Congress, p. 439. 

5 Thayer's Cases, vol. i, p. 55. Cf. supra, p. 18. 



50 THE SUPREME COURT AND THE CONSTITUTION 

and, pointing to the Constitution, will say to them, here 
is the limit of yoiir authority and hither shall you go but 
no further. 

The duty of a court to declare unconstitutional laws 
void could hardly be more energetically asserted. 
Of course this is not direct evidence that Wythe 
held that the federal Constitution embodied the 
principle, but it is clear that he favored the 
doctrine. 

William Few, of Georgia, George Read, of Delaware, 
and Caleb Strong, of Massachusetts, who were mem- 
bers of the first Senate under the new government, 
voted for the Judiciary Act^ and may therefore, for 
the reasons indicated above, be regarded as having 
accepted the principle of the judicial review of fed- 
eral statutes. 

Summing up the evidence : we may say that of the 
leading members of the Convention no less than 
fourteen believed that the judicial power included 
the right and duty of passing upon the constitution- 
ality of acts of Congress. Satisfactory evidence is 
afforded by the vote on the Judiciary Act that three 
other leading members held to the same belief. Of 
the less prominent members, we find that three 

^Annals of Congress, vol. i, p. 51. Cf. supra, p. 44. 



THE CONSTITUTIONAL CONVENTION OF 1787 51 

expressed themselves in favor of judicial control and 
three others approved it by their vote on the Judi- 
ciary Act. We are justified in asserting that twenty- 
five ^ members of the Convention favored or at least 
accepted some form of judicial control. This num- 
ber understood that federal judges could refuse to 
enforce unconstitutional legislation. 

We may now turn to the evidence that judicial 
control was not regarded by the framers of the Con- 
stitution as a normal judicial function under the new 
system. The researches of those who contend 
that the doctrine propounded in Marbury v. Madison 
is sheer usurpation have placed only four members of 
the Convention on record against judicial control; 
and one of these, John Dickinson, of Delaware, 
must be stricken from the list.^ The evidence 
in the case of the remaining three members is as 
follows: 

1 To the twenty-three members here enumerated must be added 
Brearley and Livingston, of New Jersey, who, through their con- 
nection with the early case of Holmes v. Walton, went on record 
as understanding and approving the doctrine of judicial review. 
See The American Historical Review, vol. iv, pp. 460, 468. I am 
indebted to Professor A. C. McLaughlin for calling my attention 
to this reference. 

' C/. supra, p. 20. 



52 THE SUPREME COURT AND THE CONSTITUTION 

Gunning Bedford, of Delaware, speaking in the 
Convention on June 4 on the subject of the executive 
veto, expressed himself as 

opposed to every check on the legislative, even the council 
of re\'ision first proposed. He thought it would be suffi- 
cient to mark out in the Constitution the boundaries to 
the legislative authority, which would give all the requisite 
security to the rights of the other departments. The 
representatives of the people- were the best judges of what 
was for their interest and ought to be under no external 
controul whatever. The two branches would produce a 
sufficient controul within the legislature itself.^ 

John F, Mercer, of Maryland. On August 15 
Madison moved that all acts, before they became 
laws, should be submitted to both the executive and 
supreme judiciary departments and, upon being 
vetoed by either or both of these departments, be 
repassed only by extraordinary majorities. Mercer 

heartily approved the motion. It is an axiom that the 
judiciary ought to be separate from the legislative; but 
equally so that it ought to be independent of that depart- 
ment. The true policy of the axiom is that legislative 
usurpation and oppression may be obviated. He disap- 
proved of the doctrine that the judges as expositors of the 
Constitution should have authority to declare a law void. 
He thought laws ought to be well and cautiously made and 
then to be uncontrotdable.2 

^* Farrand, vol. i, p. 100. ^ ihi^, vol. ii, p. 298. 



THE CONSTITUTIONAL CONVENTION OF 1787 53 

Mercer evidently feared ''legislative oppression," 
and when the motion to have acts submitted to the 
judiciary before they should become laws was 
rejected, he may have changed his mind on the sub- 
ject of judicial control. However that may be, he 
stands on record as distinctly disapproving the doc- 
trine. 

Richard Spaight, of North Carolina, was undoubt- 
edly opposed to judicial control over legislation, 
although he does not appear to have said anything 
on the subject in the constitutional Convention. In 
the spring of 1787 the superior court of North Caro- 
lina, in the case of Bayard v. Singleton, declared an 
act of the legislature of that state null and void on 
the ground that it was not warranted by the Consti- 
tution of the Commonwealth. The decision aroused 
much popular opposition and Spaight joined in the 
protest against the action of the court. In a letter 
dated Philadelphia, August 12, 1787, and directed 
to Mr. Iredell, Spaight wrote: 

I do not pretend to vindicate the law which has been the 
subject of controversy; it is immaterial what law they have 
declared void; it is their usurpation of the authority to do 
it that I complain of, as I do most positively deny that 
they have any such power; nor can they find anything in 
the Constitution, either directly or impliedly, that will 



54 THE SUPREME COURT AND THE CONSTITUTION 

support them, or give them any color of right to exercise 
that authority. Besides it would have been absurd, and 
contrary to the practice of all the world, had the Consti- 
tution vested such power in them as would have operated 
as an absolute negative on the proceedings of the legis- 
lature, which no judiciary ought ever to possess. . . , 

He further declared that ''many instances might be 
brought to show the absurdity and impropriety of 
such power being lodged in the judges." He was 
aware, he explained, of the desirability of a check on 
the legislature, but he thought an annual election the 
best that could be devised.^ 

Pierce Butler, of South Carolina, and John Lang- 
don, of New Hampshire, were members of the first 
Senate of the new Union, and both voted against the 
Judiciary Act of 1789.2 Their reasons for so voting 
are not apparent ; and it may be questioned whether 
a vote cast against the act as a whole is evidence of 
opposition to the principle of judicial control over 
federal legislation recognized in the twenty-fifth 
section of the act. If, however, these two names be 
added, the list of opponents of judicial control con- 
tains five members of the Convention, and but one of 
the five, Butler, belonged to the influential group. 

^ Coxe, An Essay on Judicial Power, pp. 248 et seq. and 385. 
^Annals of Congress, vol. i, p. 51. 



THE CONSTITUTIONAL CONVENTION OF 1787 55 

Mr. Boudin lays much stress on the silence of those 
who disliked judicial control of legislation. He says : 

It is absurd to assume that the many avowed opponents 
of judicial control of legislation who sat in the convention 
would have agreed to the [judiciary] article without a 
murmur had they suspected that it contained even a part 
of the enormous power which our judiciary now exercises. 
Richard Spaight for one, whose fiery denunciation of this 
power I have quoted above, would have made the halls in 
which the Convention met ring to the echo with his em- 
phatic protest, had he suspected any such implications.* 

The "avowed opponents'* do not seem to have been 
''many"; but whether they and the unavowed oppo- 
nents were many or few, they must have been fully 
aware that most of the leading members regarded 
the nullification of unconstitutional laws as a nor- 
mal function. The view was more than once clearly 
voiced in the Convention, and any delegate who was 
not aware of such implications must have been 
very remiss in the discharge of his duties. 

On June 4 King definitely stated that the judges in 
the exposition of the laws would no doubt stop the 
operation of such as appeared repugnant to the Con- 
stitution.2 On that day there were present repre- 
sentatives from Massachusetts, Connecticut, New 
* Loc. cit., pp. 248, 249. 2 Farrand, vol. i, p. 109. 



56 THE SUPREME COURT AND THE CONSTITUTION 

York, Pennsylvania, Delaware, Maryland, Virginia, 
North Carolina, South Carolina and Georgia. In 
addition to members in the group of twenty-five 
enumerated above there were recorded as present 
on that occasion Bedford, McClurg, Pierce and 
Yates. ^ Several other members, including Spaight, 
were in Philadelphia at the time and were probably 
in attendance at that particular session, but as there 
was no preliminary roll call the list of those actually 
present must be made up from those who addressed 
the Convention or appeared in the roll on a divided 
vote, or from an outside source. 

The proposition to associate the federal judges 
with the executive in controlling acts of Congress 
was again brought up in the Convention by Mr. 
Wilson on Jtdy 2ist and again defeated. The fol- 
lowing extracts are from Madison's notes of the 
debates on this occasion.^ 

Mr. Wilson moved, as an amendment to the tenth Reso- 
lution, ''that the Supreme National Judiciary should be 
associated with the Executive in the revisionary power.'' 
This proposition had been before made and failed; but 
he was so confirmed by reflection in the opinion of its 
utility that he thought it incumbent on him to make 

* Farrand, vol. i, pp. 96 ff. 

2 Madison Papers, vol. ii, p. 1161 ff.; Farrand, vol. ii, pp. 22 ff. 



THE CONSTITUTIONAL CONVENTION OP 1787 57 

another effort. The judiciary ought to have an oppor- 
tunity of remonstrating against projected encroachments 
on the people as well as on themselves. It had been said 
that the judges, as expositors of the laws, would have an 
opportunity of defending their constitutional rights. 
There was weight in this observation; but this power of the 
judges did not go far enough. Laws may be unjust, may 
be unwise, may be dangerous, may be destructive; and 
yet not be so unconstitutional as to justify the judges 
in refusing to give them effect. Let them have a share in 
the revisionary power, and they will have an opportunity 
of taking notice of these characters of a law, and of coun- 
teracting, by the weight of their opinions, the improper 
views of the Legislature. — Mr. Madison seconded the 
motion. 

Mr. Gorham did not see the advantage of employing the 
judges in this way. As judges they are not to be pre- 
sumed to possess any peculiar knowledge of the mere 
policy of public measures. Nor can it be necessary as a 
security for their constitutional rights. The judges in 
England have no such additional provision for their 
defence, yet their jurisdiction is not invaded. He thought 
it would be best to let the executive alone be responsible, 
and at most to authorize him to call on judges for their 
opinions. 

Mr. Ellsworth approved heartily of the motion. The 
aid of the judges will give more wisdom and firmness to 
the executive. They will possess a systematic and accu- 
rate knowledge of the laws, which the executive cannot be 
expected always to possess. The law of nations also will 
frequently come into question. Of this the judges alone 
will have competent information. 

Mr. Madison considered the object of the motion as of 



58 THE SUPREM-E COURT AND THE CONSTITUTION 

great importance to the meditated Constitution. It 
would be useful to the judiciary department by giving it 
an additional opportunity of defending itself against 
legislative encroachments. It would be useful to the 
executive, by inspiring additional confidence and firmness 
in exerting the re visionary power. It would be useful 
to the Legislature, by the valuable assistance it would 
give in preserving a consistency, conciseness, perspicuity, 
and technical propriety in the laws, quaHties peculiarly 
necessary, and yet shamefully wanting in our Republican 
codes. It would, moreover, be useful to the community at 
large, as an additional check against a pursuit of those 
unwise and unjust measures which constituted so great 
a portion of our calamities. If any soHd objection could 
be urged against the motion, it must be on the supposition 
that it tended to give too much strength, either to the 
executive or judiciary. He did not think there was the 
least ground for this apprehension. It was much more 
to be apprehended, that, notwithstanding this cooperation 
of the two departments, the Legislature would still be an 
overmatch for them. Experience in aU the States had 
evinced a powerful tendency in the Legislature to absorb 
all power into its vortex. This was the real sotirce of dan- 
ger to the American Constitutions; and suggested the 
necessity of giving every defensive authority to the 
other departments that was consistent with republican 
principles. 

Mr Mason said he had always been a friend to this pro- 
vision. It would give a confidence to the executive which 
he would not otherwise have, and without which the 
revisionary power would be of little avail. 

Mr. Gerry did not expect to see this point, which had 
undergone full discussion, again revived. The object he 



THE CONSTITUTIONAL CONVENTION OF 1787 59 

conceived of the revisionary power was merely to secure 
the executive department against legislative encroach- 
ment. The executive, therefore, who will best know and 
be ready to defend his rights, ought alone to have the 
defence of them. The motion was liable to strong objec- 
tions. It was combining and mixing together the legis- 
lative and the other departments. It was establishing an 
improper coalition between the executive and judiciary 
departments. It was making statesmen of the judges, 
and setting them up as the guardians of the rights of the 
people. He relied, for his part, on the representatives of 
the people as the guardians of their rights and interests. 
It was making the expositors of the laws the legislators, 
which ought never to be done. A better experiment for 
correcting the laws would be to appoint, as had been done 
in Pennsylvania, a person or persons of proper skill, to 
draw bills for the Legislature. 

Mr. Strong thought, with Mr. Gerry, that the power of 
making ought to be kept distinct from that of expounding, 
the laws. No maxim was better established. The judges 
in exercising the function of expositors might be influ- 
enced by the part they had taken, in framing the laws. 

Mr. Gouverneur Morris. Some check being necessary 
on the Legislattire, the question is, in what hands should it 
be lodged? On one side, it was contended that the exec- 
utive alone ought to exercise it. He did not think that 
an executive appointed for six years, and impeachable 
while in office, would be a very efiEectual check. On the 
other side, it was urged, that he ought to be reinforced by 
the judiciary department. Against this it was objected 
that expositors of the laws ought to have no hand in 
making them, and arguments in favor of this had been 
drawn from England. What weight was due to them 



6o THE SUPREME COURT AND THE CONSTITUTION 

might be easily determined by an attention to facts. The 
truth was that the judges in England had a great share in 
the legislation. They are consulted in difficult and doubt- 
ful cases. They may be, and some of them are, members 
of the Legislature. They are, or may be, members of 
the Privy Council; and can there advise the executive, as 
they will do with us if the motion succeeds. The influ- 
ence the EngHsh 'judges may have, in the latter capacity, 
in strengthening the executive check, cannot be ascer- 
tained, as the King, by his influence, in a manner dictates 
the laws. There is one difference in the two cases, how- 
ever, which disconcerts all reasoning from the British to 
our proposed Constitution. The British executive has so 
great an interest in his prerogatives, and such powerftd 
means of defending them, that he wiU never yield any 
part of them. The interest of our executive is so incon- 
siderable and so transitory, and his means of defending it 
so feeble, that there is the justest grotmd to fear his want 
of firmness in resisting encroachments. He was extremely 
apprehensive that the auxiliary firmness and weight of 
the judiciary would not supply the deficiency. He con- 
curred in thinking the public liberty in greater danger 
from legislative usurpations than from any other sotu-ce. 
It had been said that the Legislature ought to be relied on, 
as the proper guardians of liberty. The answer was short 
and conclusive. Either bad laws will be pushed, or not. 
On the latter supposition, no check will be wanted. On 
the former, a strong check will be necessary. And this is 
the proper supposition. Emissions of paper money, lar- 
gesses to the people, a remission of debts, and similar meas- 
ures, will at some time be popular, and will be pushed for 
that reason. At other times, such measures will coincide 
with the interests of the Legislatiires themselves, and that 



THE CONSTITUTIONAL CONVENTION OF 1787 61 

will be a reason not less cogent for pushing them. It may 
be thought that the people will not be deluded and mis- 
led in the latter case. But experience teaches another 
lesson. The press is indeed a great means of diminish- 
ing the evil; yet it is found to be unable to prevent it 
altogether. 

Mr. L. Martin considered the association of the judges 
with the executive as a dangerous innovation; as well as 
one that could not produce the particular advantage 
expected from it. A knowledge of mankind, and of legis- 
lative affairs, cannot be presumed to belong in a higher 
degree to the judges than to the Legislature. And as to 
the constitutionality of laws, that point wiU come before 
the judges in their official character. In this character 
they have a negative on the laws. Join them with the 
executive in the revision, and they will have a double 
negative. It is necessary that the Supreme Judiciary 
should have the confidence of the people. This will soon 
be lost, if they are employed in the task of remonstrating 
against popular measures of the Legislature. Besides, in 
what mode and proportion are they to vote in the Coimcil 
of Revision? 

Mr. Madison could not discover in the proposed asso- 
ciation of the judges with the executive, in the revision- 
ary check on the Legislature, any violation of the maxim 
which requires the great departments of power to be kept 
separate and distinct. On the contrary, he thought it an 
auxiliary precaution, in favor of the maxim. If a consti- 
tutional discrimination of the departments on paper were a 
sufficient security to each other against encroachments of 
the others, all further provisions would indeed be super- 
fluous. But experience had taught us a distrust of that 
security; and that it is necessary to introduce such a bal- 



62 THE SUPREME COURT AND THE CONSTITUTION 

ance of powers and interests as will guarantee the pro- 
visions on paper. Instead, therefore, of contenting our- 
selves with laying down the theory in the Constitution 
that each department ought to be separate and distinct, 
it was proposed to add a defensive power to each, which 
should maintain the theory in practice. In so doing, we 
did not blend the departments together. We erected 
effectual barriers for keeping them separate. The most 
regular example of this theory was in the British Consti- 
tution. Yet it was not only the practice there to admit 
the judges to a seat in the Legislature, and in the Execu- 
tive Councils, and submit to their previous examination 
all laws of a certain description, but it was a part of their 
Constitution that the executive might negative any law 
whatever; a part of their Constitution which had been 
universally regarded as calculated for the preservation of 
the whole. The objection against the union of the judi- 
ciary and executive branches, in the revision of the laws, 
had either no foundation, or was not carried far enough. 
If such a union was an improper mixture of powers, or 
such a judiciary check on the laws was inconsistent with 
the theory of a free constitution, it was equally so to admit 
the executive to any participation in the making of laws; 
and the revisionary plan ought to be discarded altogether. 
Colonel Mason observed that the defence of the execu- 
tive was not the sole object of the revisionary power. He 
expected even greater advantages from it. Notwith- 
standing the precautions taken in the constitution of the 
Legislature, it would still so much resemble that of the 
individual States that it must be expected frequently to 
pass unjust and pernicious laws. This restraining power 
was therefore essentially necessary. It would have the 
effect, not only of hindering the final passage of such laws, 



THE CONSTITUTIONAL CONVENTION OF 1787 63 

but would discourage demagogues from attempting to 
get them passed. It has been said (by Mr. L. Martin) 
that if the judges were joined in this check on the laws 
they would have a double negative, since in their exposi- 
tory capacity of judges they would have one negative. 
He would reply that in this capacity they could impede, 
in one case only, the operation of laws. They could 
declare an unconstitutional law void. But with regard 
to every law, however unjust, oppressive or pernicious, 
that did not come plainly under this description, they 
would be under the necessity, as judges, to give it a 'free 
course. He wished the further use to be made of the 
judges of giving aid in preventing every improper law. 
Their aid will be the more valuable, as they are in the 
habit and practice of considering laws in their true prin- 
ciples, and in all their consequences. . . . 

In view of these discussions and the evidence 
adduced above, it cannot be assumed that the Con- 
vention was unaware that the judicial power might 
be held to embrace a very considerable control over 
legislation and that there was a high degree of prob- 
ability (to say the least) that such control would be 
exercised in the ordinary course of events. 

The accepted canons of historical criticism war- 
rant the assumption that, when a legalproposition 
is before a law-making body and a considerable num- 
ber of the supporters of that proposition definitely 
assert that it involves certain important and funda- 



64 THE SUPREME COURT AND THE CONSTITUTION 

mental implications, and it is nevertheless approved 
by that body without any protests worthy of men- 
tion, these implications must be deemed part of that 
legal proposition when it becomes law; provided, of 
course, that they are consistent with the letter and 
spirit of the instrument. To go further than this — 
to say that the convention must have passed defi- 
nitely upon every inference that could logically be 
drawn from the language of the instrument that it 
adopted — would of course be absurd. 

In balancing conflicting presumptions in order to 
reach a judgment in the case, it must be remembered 
that no little part of the work of drafting the Consti- 
tution was done by the Committee of Detail and the 
Committee of Style. 

The former committee, appointed on July 24, 
consisted of Rutledge, Wilson, Ellsworth, Randolph 
and Gorham. Of these five men two, Ellsworth and 
Wilson, had expressly declared themselves in favor of 
judicial control, and Wilson seems to have been the 
** dominating mind of the committee." This com- 
mittee had before it the resolutions referred to it by 
the Convention on July 23. It had also before it 
the Pinckney plan, or an outline of it, and the New 
Jersey plan. The members of the committee had 



THE CONSTITUTIONAL CONVENTION OF 1787 65 

been assiduous in their attendance upon the debates 
during the two months previous, and they prepared 
a draft of a constitution which they presented to the 
Convention on August 6. The article deaHng with 
federal judicial power, as reported by the committee,^ 
contained most of the provisions later embodied in 
the federal Constitution. 

After lengthy debates on the draft submitted by 
the Committee of Detail, a committee of five was 
created to revise and arrange the style of the articles 
agreed to by the Convention; and Johnson, Hamil- 
ton, Gouverneiir Morris, Madison, and King were 
selected as members of this committee. Of these 
five men four, Hamilton, Morris, Madison and King, 
are on record as expressly favoring judicial control 
over legislation. There is some little dispute as to 
the share of glory to be assigned to single members of 
the committee, but undoubtedly Gouvemeur Morris 
played a considerable part in giving to the Consti- 
tution its final form. Speaking of his work on the 
Constitution, Mr. Morris later wrote: 

Having rejected redundant and equivocal terms, I believed 
it as clear as our language would permit; excepting, never- 
theless, a part of what relates to the judiciary. On that 

^Farrand, vol. ii, p. 186, 



66 THE SUPREME COURT AND THE CONSTITUTION 

subject conflicting opinions had been maintained with so 
much professional astuteness that it became necessary to 
select phrases which expressing my own notions would not 
alarm others nor shock their self-love.^ 

That the Constitution was not designed to be per- 
fectly explicit on all points and to embody definitely 
the opinions of the majority of the Convention is fur- 
ther evidenced by a speech made by Abraham Bald- 
win, a member of the Convention from Georgia, in 
the House of Representatives on March 14, 1796. 
In speaking of the clause of the Constitution which 
provides that treaties are to be the supreme law of 
the land, he said: 

He would begin it by the assertion, that those few words in 
the Constitution on this subject were not those apt, pre- 
cise, definite expressions, which irresistibly brought upon 
them the meaning which he had been above considering. 
He said it was not to disparage the instrument, to say 
that it had not definitely, and with precision, absolutely 
settled everything on which it had spoken. He had suffi- 
cient evidence to satisfy his own mind that it was not sup- 
posed by the makers of it at the time but that some sub- 
jects were left a little ambiguous and imcertain. It was a 
great thing to get so many difficult subjects definitely set- 
tled at once. If they could all be agreed in, it would com- 

^ Sparks, Life of Morris, vol. iii, p. 323. Professor A. C. 
McLaughlin, in a letter to the author, suggests that the "con- 
flicting opinions " referred to by Morris were not over the question 
of judicial review, but over the subjects of inferior federal cx)urts 
and appeals from state tribunals. 



THE CONSTITUTIONAL CONVENTION OF 1787 67 

pact the Government. The few that were left a little 
unsettled might, without any great risk, be settled by 
practice or by amendments in the progress of the Govern- 
ment. He believed this subject of the rival powers of 
legislation and treaty was one of them; the subject of the 
militia was another, and some question respecting the 
judiciary another. When he reflected on the immense 
difficulties and dangers of that trying occasion — ^the old 
Government prostrated, and a chance whether a new one 
could be agreed in — ^the recollection recalled to him noth- 
ing but the most joyful sensations that so many things 
had been so well settled, and that experience had shown 
there was very little difficulty or danger in settling the 
rest.i 

* Farrand, vol. iii, p. 369. 



CHAPTER III. 

Judicial Control Before the Ratifying 
Conventions 

It is urged by the opponents of judicial control 
that, whatever may have been the purpose of the 
members of the Philadelphia convention, the rati- 
fying conventions in the states gave the final legal 
sanction to the Constitution, and a soimd rule of 
interpretation would compel us to ascertain the 
opinion of these bodies on the point at issue. This 
contention cannot be gainsaid ; but a full examination 
of the materials on the state conventions, as anyone 
can see, would require years of research into the lives 
and opinions of several hundred inembers. The 
author does not pretend to have made this research, 
and this essay is limited principally to a considera- 
tion of the ptirpose of the framers, not the enactors, 
of the Constitution. However, it is of interest to 

note what materials bearing on the purpose of the 

68 



THE RATIFYING CONVENTIONS 69 

enactors with regard to this point are contained in 
ElHot's Debates. 

If the members of the Virginia convention which 
ratified the federal Constitution were in the dark as 
to this matter, or had any doubts as to the probable 
implications of the judiciary article, they must have 
been enlightened by the clear and tinmistakable lan- 
guage of John Marshall. In replying to objections 
which had been raised regarding the danger of an 
extension of federal jurisdiction at the cost of the 
states, he pointed out that the proposed federal gov- 
ernment was one of enumerated and limited powers. 

Has the government of the United States power to make 
laws on every subject?. . .Can they make laws affecting 
the mode of transferring property, or contracts, or claims 
between citizens of the same state? Can they go beyond 
the delegated powers? If they were to make a law not 
warranted by any of the powers enumerated it would be 
considered by the judges as an infringement of the Con- 
stitution which they are to guard. They would not con- 
sider such a law as coming under their jurisdiction. They 
would declare it void.^ 

In the course of the discussion, Mr. Grayson said : 
"If the Congress cannot make a law against the Con- 
stitution I apprehend they cannot make a law to 
abridge it. The judges are to defend it." 2 Mr. 

1 Elliot's Debates, vol. iii, p. 553. 2 m^,^ p. 567. 



70 THE SUPREME COURT AND THE CONSTITUTION 

Pendleton declared: "The fair inference is that op- 
pressive laws will not be warranted by the Consti- 
tution, nor attempted by our representatives, who 
are selected for their ability and integrity, and that 
honest, independent judges will never admit an 
oppressive construction."^ 

The Maryland convention was by no means unin- 
formed regarding the possible functions of the judi- 
ciary imder the proposed Constitution. In his 
famous letter directed to the legislature of the state, 
Luther Martin said: 

Whether, therefore, any laws or regulations of the Con- 
gress or any acts of its president or other officers are con- 
trary to, or not warranted by, the Constitution, rests only 
with the judges who are appointed by Congress to deter- 
mine; by whose determinations every state must be 
bound.^ 

If the members of the Pennsylvania ratifying con- 
vention had any doubts regarding the probable exer- 
cise of judicial control over legislation under the new 
Constitution, these must have been removed by one 
of Mr. Wilson's speeches in defence of the judiciary. 
Some members of the convention expressed the ap- 
prehension that, inasmuch as the federal courts were 
to have jiuisdiction in all cases in law and equity 

1 Elliot's Debates, vol. iii, p. 548. ^Ibid., vol. i, p. 380. 



THE RATIFYING CONVENTIONS 71 

arising under the Constitution and the laws of the 
United States, the power enjoyed by the judges 
might be indefinitely extended if Congress saw fit 
to make laws not warranted by the Constitution. 
On this point Mr. Wilson said: 

I think the contrary inference true. If a law should be 
made inconsistent with those powers vested by this instru- 
ment in Congress, the judges, as a consequence of their 
independence, and the particular powers of government 
being defined, will declare such law to be null and void. 
For the power of the Constitution predominates. Any- 
thing therefore that shall be enacted by Congress contrary 
thereto will not have the force of law.i 

In New York, the members of the Convention 
must have known the clear and cogent argument for 
judicial control made by Hamilton in The Federalist. 

If the members of the Connecticut convention were 
unaware of the fact that imder the provisions of the 
Constitution the judiciary would enjoy the power to 
pass upon the constitutionality of federal and state 
statutes, it was their own fault ; for, in his speech of 
January 7, 1788, on the power of Congress to lay 
taxes, Oliver Ellsworth carefully explained the new 
system. He said: 

^ McMaster and Stone, Pennsylvania and the Federal Constitutiont 
p. 354. 



7 2 THE SUPREME COURT AND THE CONSTITUTION 

This constitution defines the extent of the powers of the 
general government. If the general legislature should at 
any time overleap their Hmits, the judicial department is 
a constitutional check. If the United States go beyond 
their powers, if they make a law which the Constitution 
does not authorize, it is void; and the judicial power, the 
national judges, who, to secure their impartiality, are to 
be made independent, will declare it to be void.^ 

It would be entirely misleading to conclude, from 
this fragmentary evidence, that the question of 
judicial control over acts of Congress was adequately 
considered in the state conventions. It was judicial 
control over state statutes that aroused the most 
serious apprehensions of critics of the new frame of 
government. That they thought much — or cared 
much — about what might happen to acts of Congress 
is not apparent. 2 Still it cannot be said that they 

^ Elliot's Delates, vol. ii, p. 196. Cf. Farrand, vol. iii, p. 240. 

2 It is interesting to note that when, ten years later, the Kentucky 
and Virginia Resolutions raised the question of judicial control, and 
the other states had occasion to express a direct opinion on this 
point, none of them seems to have approved the doctrine expressed 
in the Resolutions. Cf. Ames, State Documents on Federal Rela- 
tions, p. 16. The Massachusetts legislature replied to Virginia, on 
February 9, 1799: "This legislature are persuaded that the decision 
of aU cases in law and equity arising under the Constitution of the 
United States and the construction of all laws made in pursuance 
thereof are exclusively vested by the people in the judicial courts of 
the United States." Ihid., pp. id> et seq. The Rhode Island assembly 
declared that "the words, to wit, 'The judicial power shall extend 
to all cases arising under the laws of the United States,' vest in the 



THE RATIFYING CONVENTIONS 73 

were kept in the dark in this respect, or that they 
could not easily have learned, if the matter had inter- 
ested them, what the framers of the Constitution 
intended and expected. And it may pertinently be 
asked what our constitutional position would be 
to-day, if it were recognized that each branch of the 
federal government, in addition to the clearly 
expressed powers conferred upon it, possesses those 
additional powers only which were understood, by 
the ratifying conventions of the states, to have been 
impliedly conferred! 

federal courts exclusively, and in the Supreme Court of the United 
States ultimately, the authority of deciding on the constitutionality 
of any act or law of the Congress of the United States. "Ibid., p. 17. 
The New Hampshire legislature resolved: "That the state legis- 
latures are not the proper tribunals to determine the constitution- 
ality of the laws of the general government; that the duty of such 
decision is properly and exclusively confided to the judicial depart- 
ment." Elliot's Debates, vol. iv, p. 539 (ed. 1861). The Vermont 
legislature asserted: "It belongs not to state legislatures to decide 
on the constitutionality of laws made by the general government, 
this power being exclusively vested in the judiciary courts of the 
Union." Ibid, The House of Representatives of Pennsylvania 
replied to Kentucky that the people of the United States "have 
committed to the supreme judiciary of the nation the high authority 
of ultimately and conclusively deciding upon the constitutionality 
of all legislative acts." Ames, op. cit., p. 20. The Senate of New 
York replied to Virginia and Kentucky that the decision of all cases 
in law and equity was confided to the federal judiciary and that the 
states were excluded from interference. Ibid., p. 23. 



CHAPTER IV. 
The Spirit of the Constitution. ^ 

Those who hold that it was not the intention of 
the framers of the Constitution to establish judicial 
control of legislation make much of the opposition 
aroused by the sporadic attempts of a few state 
courts to exercise such a control prior to 1 787. Dean 
Trickett cites the cases and exclaims: "These then 
are the precedents!" Mr. Boudin cites them and 
also exclaims: "Such were the state 'precedents', and 
such was the temper of the people at the time the 
Philadelphia convention met to frame the Constitu- 
tion of the United States." The only trouble with 
this line of argument is that it leaves out of accoiint 
the sharp poHtical division existing in the United 
States in 1787 and the following years. 

The men who framed the federal Constitution 
were not among the paper-money advocates and 

1 In this chapter I have reprinted a few pages from my American 
Government and Politics. 

74 



THE SPIRIT OF THE CONSTITUTION 75 

stay-law makers whose operations in state legisla- 
ttires and attacks upon the courts were chiefly- 
responsible, Madison informs us, for the calling of 
the convention. The framers of the Constitution 
were not among those who favored the assaults on 
vested rights which legislative majorities were 
making throughout the Union. On the contrary, 
they were, almost without exception, bitter oppo- 
nents of such enterprises ; and they regarded it as their 
chief duty, in drafting the new Constitution, to 
iind a way of preventing the renewal of what they 
deemed "legislative tyranny." Examine the rolls 
of the state conventions that ratified the Constitu- 
tion after it came from the Philadelphia convention, 
and compare them with the rolls of the legislatiires 
that had been assailing the rights of property. It 
was largely because the framers of the Constitution 
knew the temper and class bias of the state legis- 
latures that they arranged that the new Constitu- 
tion should be ratified by conventions. 

The makers of the federal Constitution represented 
the soHd, conservative, commercial and financial 
interests of the country — not the interests which 
denounced and proscribed judges in Rhode Island, 
New Jersey and North Carolina, and stoned their 



I 



76 THE SUPREME COURT AND THE CONSTITUTION 

houses in New York. The conservative interests, 
made desperate by the imbecilities of the Confedera- 
tion and harried by state legislatures, roused them- 
selves from their lethargy, drew together in a mighty 
eSort to estabHsh a government that would be strong 
enough to pay the national debt, regulate interstate 
and foreign commerce, provide for national defence, 
prevent fluctuations in the currency created by paper 
emissions, and control the propensities of legislative 
majorities to attack private rights. 

It is in the light of the poHtical situation that 
existed in 1787 that we must inquire whether the 
principle of judicial control is out of harmony with 
the general purpose of the federal Constitution. It is 
an ancient and honorable rule of construction, laid 
down by Blackstone, that any instrument should be 
interpreted, ''by considering the reason and spirit 
of it; or the cause which moved the legislator to 
enact it . . . From this method of interpreting laws, 
by the reason of them, arises what we call equity." 
It may be, therefore, that the issue of judicial control 
is a case in equity. The direct intention of the fram- 
ers and enactors not being clearly expressed on this 
point, we may have recourse to the "reason and 
spirit" of the Constitution. 



A 



THE SPIRIT OF THE CONSTITUTION 77 

As Blackstone shows by happy illustration the 
reason and spirit of a law are to be understood only 
by an inquiry into the circumstances of its enact- 
ment. The underlying purposes of the Constitution, 
therefore, are to be revealed only by a study of the 
conditions and events which led to its formation 
and adoption. 

At the outset it must be remembered that there 
were two great parties at the time of the adoption of 
the Constitution — one laying emphasis on strength 
and efficiency in government and the other on its 
popular aspects. Quite naturally the men who led 
in stirring up the revolt against Great Britain and 
in keeping the fighting temper of the Revolutionists 
at the proper heat were the boldest and most radical 
thinkers — men like Samuel Adams, Thomas Paine, 
Patrick Henry, and Thomas Jefferson. They were 
not, generally speaking, men of large property inter- 
ests or of much practical business experience. In a 
time of disorder, they could consistently lay more 
stress upon personal liberty than upon social control ; 
and they pushed to the extreme limits those doc- 
trines of individual rights which had been evolved 
in England during the struggles of the small landed 
proprietors and commercial classes against royal 



78 THE SUPREME COURT AND THE CONSTITUTION 

prerogative, and which corresponded to the economic 
conditions prevailing in America at the close of the 
eighteenth century. They associated strong gov- 
ernment with monarchy, and came to believe that 
the best political system was one which governed 
least. A majority of the radicals viewed all govern- 
ment, especially if highly centralized, as a species of 
evil, tolerable only because necessary and always to 
be kept down to an irreducible minimum by a jealous 
vigilance. 

Jefferson put the doctrine in concrete form when 
he declared that he preferred newspapers without 
government to government without newspapers. 
The Declaration of Independence, the first state Con- 
stitutions, and the Articles of Confederation bore 
the impress of this philosophy. In their anxiety to 
defend the individual against all federal interfer- 
ence and to preserve to the states a large sphere of 
local autonomy, these Revolutionists had set up a 
system too weak to accomplish the accepted objects 
of government; namely, national defence, the pro- 
tection of property, and the advancement of com- 
merce. They were not unaware of the character of 
their handiwork, but they believed with Jefferson 
that **man was a rational animal endowed by nature 



THE SPIRIT OF THE CONSTITUTION 79 

with rights and with an innate sense of justice and 
that he could be restrained from wrong and protected 
in right by moderate powers confided to persons of 
his own choice." Occasional riots and disorders, 
they held, were preferable to too much govern- 
ment. 

The new American political system based on these 
doctrines had scarcely gone into effect before it began 
to incur opposition from many sources. The close 
of the Revolutionary struggle removed the prime 
cause for radical agitation and brought a new group 
of thinkers into prominence. When independence 
had been gained, the practical work to be done was 
the maintenance of social order, the payment of the 
public debt, the provision of a sound financial sys- 
tem, and the establishment of conditions favorable 
to the development of the economic resources of the 
new coimtry. The men who were principally con- 
cerned in this work of peaceful enterprise were not 
the philosophers, but men of business and property 
and the holders of public securities. For the most 
part they had had no quarrel with the system of class 
rule and the strong centralization of government 
which existed in England. It was on the question of 
policy, not of governmental structure, that they had 



8o THE SUPREME COURT AND THE CONSTITUTION 

broken with the British authorities. By no means 
all of them, in fact, had even resisted the policy of 
the mother coimtry, for within the ranks of the con- 
servatives were large numbers of Loyalists who had 
remained in America, and, as was to have been 
expected, cherished a bitter feeling against the Revo- 
lutionists, especially the radical section which had 
been boldest in denouncing the EngHsh system root 
and branch. In other words, after the heat and 
excitement of the War of Independence were over 
and the new government, state and national, was 
tested by the ordinary experiences of traders, finan- 
ciers, and manufacturers, it was found inadequate, 
and these groups accordingly grew more and more 
determined to reconstruct the political system in 
such a fashion as to make it subserve their permanent 
interests. 

Under the state constitutions and the Articles of 
Confederation established during the Revolution, 
every powerful economic class in the nation suffered 
either immediate losses or from impediments placed 
in the way of the development of their enterprises. 
The holders of the securities of the Confederate gov- 
ernment did not receive the interest on their loans. 
Those who owned western lands or looked with long- 



THE SPIRIT OF THE CONSTITUTION 8 1 

ing eyes upon the rich opportunities for speculation 
thete chaffed at the weakness of the government and 
its delays in establishing order on the frontiers. 
Tracers and commercial men found their plans for 
commerce on a national scale impeded by local inter- 
ference with interstate commerce. The currency of 
the states and the nation was hopelessly muddled. 
Creditors everywhere were angry about the depre- 
ciated paper money which the agrarians had made 
and were attempting to force upon those from whom 
they had borrowed specie. In short, it was a war 
between business and populism. Under the Articles 
of Confederation populism had a free hand, for major- 
ities in the state legislatures were omnipotent. Any- 
one who reads the economic history of the time will 
see why the solid conservative interests of the coun- 
try were weary of talk about the "rights of the peo- 
ple" and bent upon establishing firm guarantees for 
the rights of property. 

The Congress of the Confederation was not long in 
discovering the true character of the futile authority 
which the Articles had conferred upon it. The neces- 
sity for new sources of revenue became apparent 
even while the struggle for independence was yet 
undecided, and, in 1781, Congress carried a resolu- 



82 THE SUPREME COURT AND THE CONSTITUTION 

tion to the effect that it should be authorized to lay 
a duty of five per cent on certain goods. This mod- 
erate proposition was defeated because Rhode Island 
rejected it on the grounds that "she regarded it the 
most precious jewel of sovereignty that no state 
shall be called upon to open its purse but by the 
authority of the state and by her own officers." 
Two years later Congress prepared another amend- 
ment to the Articles providing for certain import 
duties, the receipts from which, collected by state 
officers, were to be applied to the payment of the 
pubHc debt; but three years after the introduction 
of the measure, four states, including New York, 
still held out against its ratification, and the project 
was allowed to drop. At last, in 1786, Congress in 
a resolution declared that the requisitions for the 
last eight years had been so irregular in their opera- 
tion, so uncertain in their collection, and so evidently 
unproductive, that a reliance on them in the future 
would be no less dishonorable to the understandings 
of those who entertained it than it would be dan- 
gerous to the welfare and peace of the Union. Con- 
gress, thereupon, solemnly added that it had become 
its duty *'to declare most explicitly that the crisis 
had arrived when the people of the United States, 



THE SPIRIT OP THE CONSTITUTION 83 

by whose will and for whose benefit the federal gov- 
ernment was instituted, must decide whether they 
will support their rank as a nation by maintaining 
the public faith at home and abroad, or whether for 
the want of a timely exertion in establishing a gen- 
eral revenue and thereby giving strength to the Con- 
federacy, they will hazard not only the existence of 
the Union but those great and invaluable privileges 
for which they have so arduously and so honorably 
contended." 

In fact, the Articles of Confederation had hardly 
gone into effect before the leading citizens also began 
to feel that the powers of Congress were wholly inade- 
quate. In 1780, even before their adoption, Alex- 
ander Hamilton proposed a general convention to 
frame a new constitution, and from that time forward 
he labored with remarkable zeal and wisdom to 
extend and popularize the idea of a strong national 
government. Two years later, the assembly of the 
state of New York recommended a convention to 
revise the Articles and increase the power of Con- 
gress. In 1783, Washington, in a circular letter to 
the governors, urged that it was indispensable to 
the happiness of the individual states that there 
should be lodged somewhere a supreme power to 



84 THE SUPREME COURT AND THE CONSTITUTION 

regtilate and govern the general concerns of the con- 
federation. Shortly afterward (1785), Governor 
Bowdoin, of IMassachusetts, suggested to his state 
legislature the advisability of calling a national 
assembly to settle upon and define the powers of 
Congress; and the legislature resolved that the gov- 
ernment under the Articles of Confederation was 
inadequate and should be reformed; but the resolu- 
tion was never laid before Congress. 

In January, 1786, Virginia invited all the other 
states to send delegates to a convention at Anna- 
polis to consider the question of duties on imports 
and commerce in general. When this convention 
assembled in 1786, delegates from only five states 
were present, and they were disheartened at the 
hmitations on their powers and the lack of interest 
the other states had shown in the project. With 
characteristic foresight, however, Alexander Hamilton 
seized the occasion to secure the adoption of a recom- 
mendation advising the states to choose representa- 
tives for another convention to meet in Philadelphia 
the following year ''to consider the Articles of Con- 
federation and to propose such changes therein as 
might render them adequate to the exigencies of 
the imion." This recommendation was cautiously 



i 



THE SPIRIT OF THE CONSTITUTION 85 

worded, for Hamilton did not want to raise any un- 
necessary alarm. He doubtless believed that a com- 
plete revolution in the old system was desirable, but 
he knew that, in the existing state of popular temper, 
it was not expedient to announce his complete pro- 
gram. Accordingly no general reconstruction of 
the political system was suggested; the Articles 
of Confederation were merely to be ^'revised"; 
and the amendments were to be approved by 
the state legislatures as provided by that instru- 
ment. 

The proposal of the Annapolis convention was 
transmitted to the state legislatures and laid before 
Congress. Congress thereupon resolved in Febru- 
ary, 1787, that a convention should be held for the 
sole and express purpose of revising the Articles of 
Confederation and reporting to itself and the legis- 
latures of the several states such alterations and pro- 
visions as would when agreed to by Congress and 
confirmed by the states render the federal constitu- 
tion adequate to the exigencies of government and 
the preservation of the union. 

In pursuance of this call, delegates to the new con- 
vention were chosen by the legislatures of the states 
or by the governors in conformity to authority con- 



86 THE SUPREME COURT AND THE CONSTITUTION 

f erred by the legislative assemblies.^ The delegates 
were given instructions of a general nature by their 
respective states, none of which, apparently, con- 
templated any very far-reaching changes. In fact, 
almost all of them expressly limited their representa- 
tives to a mere revision of the Articles of Confedera- 
tion. For example, Connecticut authorized her 
delegates to represent and confer for the purpose 
mentioned in the resolution of Congress and to dis- 
cuss such measures ''agreeably to the general prin- 
ciples of Republican government" as they should 
think proper to render the Union adequate. Dela- 
ware, however, went so far as to provide that none 
of the proposed alterations should extend to the 
fifth part of the Articles of Confederation guaran- 
teeing that each state should be entitled to one 
vote. 

It was a truly remarkable assembly of men that 
gathered in Philadelphia^on May 14, 1787, to under- 
take the work of reconstructing the American system 
of government. It is not merely patriotic pride that 
compels one to assert that never in the history of 

* Rhode Island alone was unrepresented. In all sixty-two dele- 
gates were appointed by the states ; fifty-five of these attended some- 
time during the sessions; but only thirty-nine signed the finished 
document. 



THE SPIRIT OF THE CONSTITUTION 87 

assemblies has there been a convention of men 
richer in poHtical experience and in practical knowl- 
edge, or endowed with a profounder insight into the 
springs of human action and the intimate essence of 
government. It is indeed an astounding fact that at 
one time so many men skilled in statecraft could be 
found on the very frontiers of civilization among a 
population numbering about four million whites. 
It is no less a cause for admiration that their instru- 
ment of government should have survived the trials 
and crises of a century that saw the wreck of more 
than a score of paper constitutions. 

All the members had had a practical training 
in politics. Washington, as commander-in-chief of 
the revolutionary forces, had learned well the lessons 
and problems of war, and mastered successfully the 
no less difficult problems of administration. The 
two Morrises had distinguished themselves in grap- 
pling with financial questions as trying and perplex- 
ing as any which statesmen had ever been compelled 
to face. Seven of the delegates had gained political 
wisdom as governors of their native states; and no 
less than twenty-eight had served in Congress either 
during the Revolution or under the Articles of Con- 
federation. There were men trained in the law, 



88 THE SUPREME COURT AND THE CONSTITUTION 

versed in finance, skilled in administration, and 
learned in the political philosophy of their own and 
all earlier times. Moreover, they were men destined 
to continue public service under the government 
which they had met to construct — Presidents, Vice- 
Presidents, heads of departments, justices of the 
Supreme Court were in that imposing body. They 
were equal to the great task of constructing a na- 
tional system strong enough to defend the country 
on land and sea, pay every dollar of the lawful debt, 
and afford sufficient guarantees to the rights of 
private property. The radicals, however, like Pat- 
rick Henry, Jefferson, and Samuel Adams, were con- 
spicuous by their absence from the convention. 

As Woodrow Wilson has concisely put it, the 
framers of the Constitution represented ''a strong 
and intelligent class possessed of unity and informed 
by a conscious solidarity of interests." ^ They were 
not convened to write a Declaration of Independence, 
but to frame a government which would meet the 
practical issues that had arisen under the Articles 
of Confederation. The objections they entertained 
to direct popular government, and they were un- 
doubtedly many, were based upon their experience 

1 Division and Reunion, p. 12. 



THE Spirit of the constitution 89 

with popular assemblies during the immediately 
preceding years. With many of the plain lessons of 
history before them, they naturally feared that the 
rights and privileges of the minority would be inse- 
cure if the principle of majority rule was definitely 
adopted and provisions made for its exercise. Fur- 
thermore, it will be remembered that up to that time 
the right of all men, as men, to share in the govern- 
ment had never been recognized in practice. Every- 
where in Europe the government was in the hands of 
a ruling monarch or at best a ruling class ; everywhere 
the mass of the people had been regarded principally 
as an arms-bearing and tax-paying multitude, unedu- 
cated, and with little hope or capacity for advance- 
ment. Two years were to elapse after the meeting 
of the grave assembly at Philadelphia before the 
transformation of the Estates General into the Na- 
tional Convention in France opened the floodgates 
of revolutionary ideas on human rights before whose 
rising tide old landmarks of government are still 
being submerged. It is small wonder, therefore, that 
under the circumstances, many of the members of 
that august body held popular government in slight 
esteem and took the people into consideration only 
as far as it was imperative *'to inspire them with 



90 THE SUPREME COURT AND THE CONSTITUTION 

the necessary confidence," as Mr. Gerry frankly 
put it.^ 

Indeed, every page of the laconic record of the 
proceedings of the convention preserved to posterity 
by Mr. Madison shows conclusively that the mem- 
bers of that assembly were not seeking to realize any 
fine notions about democracy and equality, but were 
striving with all the resources of political wisdom at 
their command to set up a system of government 
that would be stable and efficient, safeguarded on one 
hand against the possibilities of despotism and 
on the other against the onslaught of majorities. 
In the mind of Mr. Gerry, the evils they had experi- 
enced flowed "from the excess of democracy," and 
he confessed that while he was still republican, he 
"had been taught by experience the danger of the 
levelling spirit." ^ Mr. Randolph in offering to the 
consideration of the convention his plan of govern- 
ment, observed "that the general object was to pro- 
vide a cure for the evils under which the United 
States labored; that, in tracing these evils to their 
origin, every man had found it in the turbulence and 
follies of democracy; that some check therefore was 
to be sought for against this tendency of our govem- 

* Elliot's Debates, vol. v, p. i6o. ^ Ibid., vol. v, p. 136. 



THE SPIRIT OF THE CONSTITUTION 91 

ments; and that a good Senate seemed most likely 
to answer the piirpose."^ Mr. Hamilton, in advo- 
cating a life term for Senators, iirged that "all com- 
munities divide themselves into the few and the many. 
The first are rich and well born and the other the mass 
of the people who seldom judge or determine right." 

Gouvemeur Morris wanted to check the "pre- 
cipitancy, changeableness, and excess" of the repre- 
sentatives of the people by the ability and virtue of 
men "of great and established property — aristoc- 
racy ; men who from pride will support consistency 
and permanency . . . Such an aristocratic body will 
keep down the turbulence of democracy." While 
these extreme doctrines were somewhat coimter- 
balanced by the democratic principles of Mr. Wilson 
who urged that "the government ought to possess, 
not only first, the force, but second the mind or sense 
of the people at large," Madison doubtless stmimed 
up in a brief sentence the general opinion of the con- 
vention when he said that to secure private rights 
against majority factions, and at the same time to 
preserve the spirit and form of popular government, 
was the great object to which their inquiries had 
been directed.^ 

1 Elliot's Delates, vol. v, p. 138. ^ The Federalist, No. 10. 



92 THE SUPREME COURT AND THE CONSTITUTION 

They were anxious above everything else to safe- 
guard the rights of private property against any 
levelHng tendencies on the part of the propertyless 
masses. Gouverneur Morris, in speaking on the 
problem of apportioning representatives, correctly 
stated the sound historical fact when he declared: 
'^Life and Hberty were generally said to be of more 
value than property. An accurate view of the mat- 
ter would, nevertheless, prove that property was the 
main object of society ... If property, then, was 
the main object of government, certainly it ought to 
be one measure of the influence due to those who were 
to be affected by the government."^ Mr. King also 
agreed that ''property was the primary object of 
society;" 2 and Mr. Madison warned the convention 
that in framing a system which they wished to last 
for ages they must not lose sight of the changes which 
the ages would produce in the forms and distribution 
of property. In advocating a long term in order to 
give independence and firmness to the Senate, he 
described these impending changes: ''An increase of 
population will of necessity increase the proportion 
of those who will labor under all the hardships of 
life and secretly sigh for a more equal distribution of 

^ Elliot's Debates vol. v, p. 279. ^ Ibid.^ vol. v, p. 280. 



THE SPIRIT OP THE CONSTITUTION 93 

its blessings. These may in time outnumber those 
who are placed above the feelings of indigence. 
According to the equal laws of suffrage, the power 
will slide into the hands of the former. No agrarian 
attempts have yet been made in this country, but 
symptoms of a levelling spirit, as we have understood 
have sufficiently appeared, in a certain quarter, to 
give notice of the future danger."^ And again, in 
support of the argument for a property qualification 
on voters, Madison urged, ''In future times, a great 
majority of the people will not only be without 
landed, but any other sort of property. These will 
either combine, under the influence of their common 
situation, — in which case the rights of property and 
the public liberty will not be secure in their hands, — 
or, what is more probable, they will become the 
tools of opulence and ambition; in which case 
there will be equal danger on another side."^ 
Various projects for setting up class rule by the 
establishment of property qualifications for voters 
and officers were advanced in the convention, 
but they were defeated. On account of the 
diversity of opinion that prevailed, agreement was 
impossible, and it was thought best to trust this 
1 Elliot's Debates, vol. v, p. 243. 2 /^^-^.^ vol. v, p. 387. 



94 THE SUPREME COURT AND THE CONSTITUTION 

matter to the discretion and wisdom of the 
states. 

Nevertheless, by the system of checks and bal- 
ances placed in the government, the convention 
safeguarded the interests of property against attacks 
by majorities. The House of Representatives, Mr. 
Hamilton pointed out, ^'was so formed as to render 
it particularly the guardian of the poorer orders of 
citizens," ^ while the Senate was to preserve the rights 
of property and the interests of the minority against 
the demands of the majority .^ In the tenth num- 
ber of The Federalist^ Mr. Madison argued in a phil- 
osophic vein in support of the proposition that 
it was necessary to base the political system on the 
actual conditions of "natural inequality." Uni- 
formity of interests throughout the state, he con- 
tended, was impossible on account of the diversity 
in the faculties of men, from which the rights of 
property originated ; the protection of these faculties 
was the first object of government ; from the protec- 
tion of different and unequal faculties of acquiring 
property the possession of different degrees and kinds 
of property immediately resulted ; from the influence 
of these on the sentiments and views of the respec- 

^ Elliot's Debates, vol. v, p. 244. ^ Ihid., vol. v, p. 203. 



THE SPIRIT OF THE CONSTITUTION 95 

tive proprietors ensued a division of society into dif- 
ferent interests and parties; the unequal distribu- 
tion of wealth inevitably led to a clash of interests 
in which the majority was liable to carry out its 
policies at the expense of the minority; hence, he 
added in concluding this splendid piece of logic 
'''the majority, having such coexistent passion or 
interest, must be rendered by their number and local 
situation unable to concert and carry into effect 
,schemes of oppression" ; and in his opinion it was the 
great merit of the newly framed Constitution that 
lit secured the rights of the minority against ''the 
superior force of an interested and overbearing 
majority." 

This very system of checks and balances, which is 
undeniably the essential element of the Constitu- 
tion, is built upon the doctrine that the popular 
branch of the government cannot be allowed full 
sway, and least of all in the enactment of laws touch- 
ing the rights of property. The exclusion of the 
direct popular vote in the election of the President; 
the creation, again by indirect election, of a Senate 
which the framers hoped would represent the wealth 
and conservative interests of the country; and the 
establishment of an independent judiciary appointed 



96 THE SUPREME COURT AND THE CONSTITUTION 

by the President with the eoncurrence of the Senace 
— all these devices bear witness to the fact that the 
tinderlying purpose of the Constitution was not che 
establishment of popular government by means of 
parliamentary majorities. 

Page after page of The Federalist is directed to that 
portion of the electorate which was disgusted with 
the ^'mutability of the public councils." Writing 
on the presidential veto Hamilton says: 

The propensity of the legislative department to Intrude 
upon the rights, and absorb the powers, of the other de- 
partments has already been suggested and repeated .... 
It may perhaps be said that the power of preventing bad 
laws included the power of preventing good ones; and may 
be used to the one piu*pose as well as the other. But this 
objection will have little weight with those who can prop- 
erly estimate the mischiefs of that inconstancy and muta- 
bility in the laws which form the greatest blemish in the 
character a.nd genius of our governments. They wiU con- 
sider every institution calculated to restrain the excess of 
law-making and to keep things in the same state in which 
they happen to be at any given period, as more likely to 
do good than harm; because it is favorable to greater sta- 
bility in the system of legislation. The injury which may 
be possibly done by defeating a few good laws will be 
amply compensated by the advantage of preventing a 
number of bad ones. 

When the framers of the Constitution had com- 
.pleted the remarkable instrument which was to 



THE SPIRIT OF THE CONSTITUTION 97 

establish a national government capable of discharg- 
ing effectively certain great functions and checking 
the propensities of popular legislatures to attack the 
riglits of private property, a formidable task re- 
mained before them — the task of securing the adop- 
tion of the new frame of government by states torn 
with popular dissensions. They knew very well that 
the state legislatures which had been so negligent 
in paying their quotas under the Articles and which 
had been so jealous of their rights, would probably 
stick at ratifying such a national instrument of 
government. Accordingly they cast aside that 
clause in the Articles requiring amendments to be 
ratified by the legislatures of all the states; and ad- 
vised that the new Constitution should be ratified 
by conventions in the several states composed of 
delegates chosen by the voters. They furthermore 
declared — and this is a fundamental matter — that 
when the conventions of nine states had ratified the 
Constitution the new government should go into 
effect so far as those states were concerned. The 
chief reason for resorting to ratifications by conven- 
tions is laid down by Hamilton in the twenty-second 
number of The Federalist: ''It has not a little con- 
tributed to the infirmities of the existing federal 



98 THE SUPREME COURT AND THE CONSTITUTION 

system that it never had a ratification by the people. 
Resting on no better foundation than the consent of 
the several legislatures, it has been exposed to fre- 
quent and intricate questions concerning the validity 
of its powers; and has in some instances given birth 
to the enormous doctrine of a right of legislative 
repeal. Owing its ratification to the law of a state, 
it has been contended that the same authority might 
repeal the law by which it was ratified. However 
gross a heresy it may be to maintain that a party to 
a compact has a right to revoke that compact, the 
doctrine itself has respectable advocates. The pos- 
sibility of a question of this natiure proves the 
necessity of laying the foundations of our national 
government deeper than in the mere sanction ^of 
delegated authority. The fabric of American empire 
ought to rest on the solid basis of the consent of the 
people. The streams of national power ought to 
flow immediately from that pure original fountain of 
all legitimate authority." 

Of course, the convention did not resort to the 
revolutionary policy of transmitting the Constitu- 
tion directly to the conventions of the several states. 
It merely laid the finished instrument before the Con- 
federate Congress with the suggestion that it should 



THE SPIRIT OP THE CONSTITUTION 99 

be submitted to "a convention of delegates chosen 
in each state by the people thereof, under the recom- 
mendation of its legislature, for their assent and 
ratification; and each convention assenting thereto 
and ratifying the same should give notice thereof to 
the United States in Congress assembled." The 
convention went on to suggest that when nine states 
had ratified the Constitution, the Confederate Con- 
gress should extinguish itself by making provision 
for the elections necessary to put the new govern- 
ment into effect. "What they [the convention] 
actually did, stripped of all fiction and verbiage," 
says Professor Burgess, "was to assume constituent 
powers, ordain a Constitution of government and of 
liberty, and demand the plebiscite thereon, over the 
heads of all existing legally organized powers. Had 
Julius or Napoleon committed these acts, they would 
have been pronounced coups d'Hat, Looked at from 
the side of the people exercising the plehiscitCy we 
term the movement revolution. The convention 
clothed its acts and assumptions in more moderate 
language than I have used, and professed to follow 
a more legal course than I have indicated. The 
exact form of procedure was as follows : They placed 
in the body of the proposed Constitution itself a 



loo THE SUPREME COURT AND THE CONSTITUTION 

provision declaring that ratifications by conventions 
of the people in nine states (commonwealths) should 
be sufficient for the establishment of the Constitu- 
tion between the states (commonwealths) so ratify- 
ing the same. They then sent the instrument entire 
to the Confederate Congress, with the direction, 
couched in terms of advice, that the Congress should 
pass it along, untouched, to the legislatures of the 
commonwealths, and that these should pass it along, 
also imtouched, to conventions of the people in each 
commonwealth, and that when nine conventions 
should have approved, Congress should take steps 
to put the new government into operation and abdi- 
cate. Of cotirse the mass of the people were not at 
all able to analyze the real character of this proce- 
dure. It is probable that many of the members of 
the convention itself did not fully comprehend just 
what they were doing. Not many of them had had 
sufficient education as publicists to be able to gener- 
alize the scientific import of their acts." ^ 

After the new Constitution was published and 
transmitted to the states, there began a long and 
bitter fight over ratification. A veritable flood of 
pamphlet literature descended upon the country, 

* Burgess, Political Science and Constitutional LaWy vol. i, p. 105. 



THE SPIRIT OF THE CONSTITUTION lOi 

and a collection of these pamphlets by Hamil- 
ton, Madison, and Jay, brought together under 
the title of The Federalist — though clearly a 
piece of campaign literature — has remained a 
permanent part of the contemporary sources 
on the Constitution and has been regarded by 
many lawyers as a commentary second in value only 
to the decisions of the Supreme Court. Within a 
year the champions of the new government found 
themselves victorious, for on June 21, 1788, the ninth 
state, New Hampshire, ratified the Constitution, and 
accordingly the new government might go into effect 
as between the agreeing states. Within a few weeks, 
the nationalist party in Virginia and New York suc- 
ceeded in winning these two states, and in spite of 
the fact that North Carolina and Rhode Island had 
not yet ratified the Constitution, Congress deter- 
mined to put the instrument into effect in accordance 
with the recommendations of the convention. 
Elections for the new government were held; the 
date March 4, 1789, was fixed for the formal estab- 
lishment of the new system; Congress secured a 
quorum on April 6; and on April 30 Washington was 
inaugurated at the Federal Hall in Wall Street, New 
York. 



CHAPTER V. 
The Supporters of the New Constitution. 

The new Constitution was ratified by conventions 
of delegates chosen at the polls; but it should be 
remembered that, imder the property qualifications 
then imposed upon the suffrage, a large proportion 
of the adult males were debarred from participating 
in the elections. Generally speaking, the property- 
less, who were disgruntled with the handiwork of the 
Philadelphia conference, could do nothing but gnash 
their teeth. 

Among those who led in the ratification of the new 
Constitution everywhere were men of substantial 
property interests who had suffered most from the 
enterprises of the state legislatures. The supporters 
of the new instrument in the states included in their 
ranks the leaders in every economic activity: mer- 
chants, traders, shippers, land dealers, lawyers, capi- 
talists, financiers, and professional men. This fact 

I02 



THE SUPPORTERS OF THE NEW CONSTITUTION 103 

is conclusively demonstrated by Dr. Libby's study 1 
of the ratification of the Constitution and it is illus- 
trated by the following letters and papers written by 
keen observers during the period of the struggle over 
the adoption of the new system of government. 

William Grayson to James Monroe. 

New York, May 29, 1787. 

The delegates [to the Philadelphia convention] from 
the Eastward are for a very strong government, and wish 
to prostrate all the state legislatures, and form a general 
system out of the whole; but I don't learn that the people 
are with them, on the contrary in Massachusetts they 
think that government too strong and are about rebelling 
again, for the purpose of making it more democratical: 
In Connecticut they have rejected the requisition for the 
present year decidedly, and no man there would be elected 
to the office of a constable if he was to declare that he 
meant to pay a copper towards the domestic debt: — 
Rhode Island has refused to send members — the cry there 
is for a good government after they have paid their debts 
in depreciated paper:— first demoHsh the Philistines, i.e. 
their creditors, and then for propriety. 

New Hampshire has not paid a shilling, since peace, and 
does not ever mean to pay one to all eternity:— if it was 
attempted to tax the people for the domestic debt 500 
Shays would arise in a fortnight. — In New York they pay 
well because they do it by plundering New Jersey and 
Connecticut.— Jersey will go great lengths from motives 

* Geographical Distribution of the Vote of the Thirteen States on the 
Federal Constitution. Wisconsin University Publications (1897). 



104 THE SUPREME COURT AND THE CONSTITUTION 

of revenge and Interest: Pennsylvania will join provided 
you let the sessions of the Executive of America be fixed 
in Philadelphia and give her other advantages in trade to 
compensate for the loss of state power. I shall make no 
observations on the southern states, but I think they will 
be, perhaps from different motives, as little disposed to 
part with efficient power as any in the Union. ^ 

D. Humpihreys to George Washington. 

New Haven, Sept. 28, 1787. 

All the different classes in the liberal professions will 
be in favour of the proposed Constitution. The clergy, 
lawyers, physicians and merchants will have considerable 
influence on society. Nor will the officers of the late 
army be backward in expressing their approbation. In- 
deed the well affected have not been wanting in efforts to 
prepare the minds of the citizens for the favorable recep- 
tion of whatever might be the result of your proceedings. 
I have had no inconsiderable agency in the superinten- 
dence of two presses, from which more newspapers are 
circulated, I imagine, than from any others in New Eng- 
land. Judicious and well-timed publications have great 
efficacy in ripening the judgment of men in this quarter 
of the continent. 

Conjectures about the New Constitution by Ham- 
ilton, Autumn, 1787. 

The new Constitution has in favor of its success these 
circumstances — a very great weight of influence of the 
persons who framed it, particularly in the universal pop- 

^ Documentary History of the Constitution, vol. i, pp. 1 70-1 71. 
^Ibid., vol. I, p. 302. 



THE SUPPORTERS OF THE NEW CONSTITUTION 105 

ularity of General Washington — the good will of the com- 
mercial interest throughout the states which will give all 
its efforts to the establishment of a government capable 
of regulating, protecting and extending the commerce of 
the Union — The good will of most men of property in the 
several states who wish a government of the union able to 
protect them against domestic violence and the deprada- 
tions which the democratic spirit is apt to make on prop- 
erty; — and who are besides anxious for the respectability 
of the nation — a strong belief in the people at large of the 
insufficiency of the present confederation to preserve the 
existence of the union and of the necessity of the union 
to their safety and prosperity; of course a strong desire of 
a change and a predisposition to receive well the propo- 
sitions of the convention. 

Against the success is to be put the influence of many 
inconsiderable men in possession of considerable offices 
under the state governments who will fear a diminution 
of their consequence, power and emolument by the estab- 
lishment of the general government and who can hope for 
nothing there — the influence of some considerable men in 
office possessed of talents and popularity who partly from 
the same motives and partly from a desire of playing a 
part in a convulsion for their own aggrandisement will 
oppose the quiet adoption of the new government — (some 
considerable men out of office, from motives of ambition 
may be disposed to act the same part) — add to these 
causes the democratical jealousy of the people which may 
be alarmed at the appearance of institutions that may 
seem calculated to place the power of the community in 
few hands and to raise a few individuals to stations of 
great preeminence — and the influence of some foreign 
powers who from different motives will not wish to see 



lo6 THE SUPREME COURT AND THE CONSTITUTION 

an energetic government established throughout the 
states.^ 

James Madison to Thomas Jefferson. Dec. 9, 

1787. 

It is worthy of remark that whilst in Virginia and some 
of the other states in the middle and southern districts 
of the Union, the men of intelligence, patriotism, property, 
and independent circumstances, are thus divided; all of 
this description, with a few exceptions, in the eastern 
states, and most of the middle states, are zealously 
attached to the proposed Constitution. In New England, 
the men of letters, the principal officers of Govt., the jud- 
ges and lawyers, the clergy, and men of property, fur- 
nish only here and there an adversary. It is not less 
worthy of remark that in Virginia where the mass of the 
people have been so much accustomed to be guided by 
their rulers on all new and intricate questions, they should 
on the present which certainly surpasses the judgment of 
the greater part of them, not only go before, but contrary 
to, their most popular leaders. And the phenomenon is 
the more wonderful, as a popular ground is taken by all 
the adversaries to the new Constitution. Perhaps the 
solution in both these cases, would not be very difficult; 
but it would lead to observations too diffusive ; and to you 
unnecessary. I will barely observe that the case in Virga. 
seems to prove that the body of sober and steady people, 
even of the lower order, are tired of the vicissitudes, injus- 
tice and follies which have so much characterised public 
measures, and are impatient for some change which prom- 
ises stability and repose.^ 

* Documentary History of the Constitution, vol. i, pp. 288-289. 
^Ihid., wol.i, p. 398. 



THE SUPPORTERS OF THE NEW CONSTITUTION 107 

H. Knox to Gen Washington, New York, Jan. 14, 
1788. 

Colonel Wadsworth writes me that the present Gov- 
ernor and Lieutenant Governor, the late Governor, the 
judges of the Supreme Court and the Council were of the 
convention and all for the constitution excepting Jas. 
Wadsworth. 

The Massachusetts convention were to meet on the 
9th. The decision of Connecticut will influence in a 
degree their determination and I have no doubt that the 
Constitution will be adopted in Massachusetts. — But it 
is at this moment questionable whether it will be by a 
large majority. 

There are three parties existing in that state at present, 
differing in their numbers and greatly differing in their 
wealth and talents. 

The I St is the commercial part, of the state to which are 
added, all the men of considerable property, the clergy, 
the lawyers — ^including all the judges of all the courts, 
and all the officers of the late army, and also the neigh- 
bourhood of all the great towns — its numbers may include 
fths of the state. This party are for the most vigorous 
government, perhaps many of them would have been still 
more pleased with the new Constitution had it been more 
analogous to the British Constitution. 

The 2d party, are the eastern part of the state lying 
beyond New Hampshire formerly the Province of Main — 
This party are chiefly looking towards the erection of a 
new state, and the majority of them will adopt or reject 
the new Constitution as it may facilitate or retard their 
designs, without regarding the merits of the great ques- 
tion — this party f ths. 



lo8 THE SUPREME COURT AND THE CONSTITUTION 

The 3d party are the Insurgents, or their favorers, the 
great majority of whom are for an annihilation of debts, 
public and private, and therefore they will not approve 
the new Constitution — ^this party f ths. 

If the ist and 2d party agree as will be most probable, 
and also some of the party stated as in the insurgent inter- 
est, the Constitution will be adopted by a great majority 
notwithstanding all the exertions to the contrary ^ 



In letters written by Rufus King to Madison dated 
in January, 1788, he said: 

Otir convention [in Massachusetts] proceeds slowly; and 
apprehension that the liberties of the people are in danger, 
and a distrust of men of property or education have a more 
powerful effect upon the minds of our opponents than 
any specific objections against the Constitution. . . , The 
friends of the Constitution, who in addition to their own 
weight are respectable as they represent a very large pro- 
portion of the good sense and property of this state, have 
the task not only of answering, but also of stating and 
bringing forward the objections of their opponents. The 
opposition complains that the lawyers, judges, clergy- 
men, merchants and men of education are all in favor of 
the Constitution — and that for that reason they appear to 
be able to make the worse appear the better cause. But 
say they, if we had men of this description on our side, we 
shoiild alarm the people with the imperfections of the 
Constitution and be able to refute the defence set up in 
its favor. Notwithstanding the superiority of talent in 
favor of the Constitution, yet the same infatuation which 

* Documentary History of the Constitution, vol. i, p. 442. 



THE SUPPORTERS OF THE NEW CONSTITUTION 109 

prevailed not many months since in several counties of 
this state, and which emboldened them to take arms 
against the government, seems to have an uncontrollable 
authority over a numerous part of the convention. These 
objections are not directed against any part of the Consti- 
tution, but their opposition seems to arise from an opinion 
that is immovable, that some injury is plotted against 
them — ^that the system is the production of the rich and 
ambitious, that they discover its operations and that 
the consequence will be the establishment of two orders in 
the Society, one comprehending the opulent and great, the 
other the poor and illiterate. The extraordinary Union in 
favor of the Constitution in this state of the wealthy and 
sensible part of it, is in confirmation of these opinions and 
every exertion hitherto made to eradicate it, has been in 
vain.^ 



Jabez Bowen to George Washington. 

Providence, Dec. 15, 1789. 

The towns of Newport, Providence, Bristol, etc., with 
the whole mercantile interest in the other towns in the 
state are federal, while the farmers in general are against 
it. Their opposition arises principally from their being 
much in debt, from the insinuations of wicked and design- 
ing men, that they will lose their liberty by adopting it; 
that the salaries of the national officers are so verry high 
that it will take the whole of the money collected by the 
impost to pay them, that the intrest and principal of 
the general debt must be raised by dry taxation on real 
estates, etc. We have exerted our utmost abilities to 

* Rufus King, Life and Letters, vol. i, pp. 314, 316. 



no THE SUPREME COURT AND THE CONSTITUTION 

convince them of the errors that they have imbibed by ' 
hearing to the old Tories and desperate debtors, but all in 
vain, what further, sir, is to be done? if we knew what our 
duty was, we are willing to do it, tho' I have no idea that 
the Antis will or can be induced to come in without the arm 
of power is exerted and that they shall be taught that 
the principles that they hould and Disseminate among the 
citizens of the neighboring states as well as this is incon- 
sistent, and not proper to be professed by any person or 
persons that live on the territories of the United States : 
their wish is to overtiun the whole Federal Government 
rather than this state should submit to it. If we fail in 
getting a convention at the next meeting of the general 
assembly, will Congress protect us if we separate from the 
State Government and appoint us officers to collect the 
revenue; if this should be thought well of and should be 
put in practice but in part I have no doubt but it will 
bring the country part of the community to their senses 
soon — and that one town and another will be a dropping 
off so that the opposition will be done away. Be pleased, 
sir, to give me an answer to this proposition as soon as 
convenient.! 

On reading these papers by representative and 
thoughtful men of the period, it is difficult to escape 
the conclusion that the Constitution was looked upon 
as a bulwark against populism of every form. Surely 
men of the type here quoted as in support of the 
new instrument of government must have rejoiced 
in the knowledge (spread abroad by The Federalist) 

^ Documentary History oj the Constitution, vol. ii, p. 226* 



THE SUPPORTERS OF THE NEW CONSTITUTION ill 

that an independent judiciary was to guard the per- 
sonal and property rights of minorities against all 
legislatures, state and national. 

Indeed, it would seem to be a work of superero- 
gation to argue such a proposition, were it not for 
the misleading notions about the American political 
system which are all too current. Every serious 
student of the history of our public law and poHcy 
has known that the defence of the rights of min- 
orities against majorities is one of the fundamental 
purposes of our system of government. "I have 
thought," said Mr. Choate in his moving argument 
in the Income Tax Cases before the Supreme Court, 
*'that one of the fundamental objects of all civilized 
government was the preservation of the rights of 
private property. I have thought that it was the 
very keystone of the arch upon which all civilized 
government rests, and that this once abandoned, 
everything was at stake and danger. ... If it be 
true, as my friend said in closing, that the passions 
of the people are aroused on this subject, if it be 
true that a mighty army of sixty millions is likely to 
be incensed by this decision, it is the more vital to 
the future welfare of this country that this court 
again resolutely and courageously declare, as Mar- 



112 THE SUPREME COURT AND THE CONSTITUTION 

shall did, that it has the power to set aside an act 
of Congress violative of the Constitution, and that 
it will not hesitate in executing that power, no mat- 
ter what the threatened consequences of popular or 
populistic wrath may be." 



CHAPTER VI. 

John Marshall and the Fathers 

The great Justice who made the theory of judicial 
control operative had better opportunities than any 
student of history or law to-day to discover the inten- 
tion of the framers of the federal Constitution. Mar- 
shall, to be sure, did not have before him Elliot's 
Debates f but he was of the generation that made the 
Constitution. He had been a soldier in the Revo- 
lutionary War. He had been a member of the Vir- 
ginia convention that ratified the Constitution; and 
he must have remembered stating in that convention 
the doctrine of judicial control, ^ apparently without 
arousing any protest. He was on intimate, if not 
always friendly, relations with the great men of his 

1 Cf. supra, p. 69. In his argument in the case of Ware v. 
Hylton before the Supreme Court in 1796, Marshall said: "The legis- 
lative authority of any country can only be restrained by its own 
municipal constitution. This is a principle that springs from the 
very nature of society; and the judicial authority can have no right 
to question the validity of a law unless such a jurisdiction is expressly 
given by the Constitution." 3 Dallas, 211. Here, however, Mar- 
shall was arguing as counsel, not stating his own personal views. 

113 



114 THE SUPREME COURT AND THE CONSTITUTION 

state who were instrumental in framing the Consti- 
tution. Washington once offered him the attorney- 
generalship. He was an envoy to France with two 
members of the convention, Charles Cotesworth 
Pinckney and Elbridge Gerry. He was a member of 
Congress for part of one term in Adams's adminis- 
tration ; he was secretary of state under Adams ; and 
he was everjrwhere regarded as a tower of strength to 
the Federalists. 

As Marshall's colleague, Story, has truly said of 
him: 

He became enamored, not of a wild and visionary 
Republic, found only in the imaginations of mere enthu- 
siasts as to human perfection, or tricked out in false colors 
by the selfish to flatter the prejudices or cheat the vanity 
of the people; but of that well-balanced Republic, adapted 
to human wants and htunan infirmities, in which power is 
to be held in check by countervailing power; and life, 
liberty and property are to be secured by a real and sub- 
stantial independence, as well as division of the Legisla- 
tive, Executive, and Judicial departments. . . . He was 
in the original, genuine sense of the word, a Federalist — a 
Federalist of the good old school, of which Washington 
was the acknowledged head, and in which he lived and 
died. In the maintenance of the principles of that school 
he was ready at all times to stand forth a determined 
advocate and supporter. On this subject he scorned aU 
disguise; he affected no change of opinion; he sought no 
shelter from reproach. 



JOHN MARSHALL AND THE FATHERS 115 

It was, therefore, no closet philosopher, ignorant 
of the conditions under which the Constitution was 
established and unlearned in the reason and spirit 
of that instrument, who first enunciated from the 
supreme bench in unmistakable language the doc- 
trine that judicial control over legislation was im- 
plied in the provisions of the federal Constitution. ^ 

Those who hold that the framers of the Constitu- 
tion did not intend to establish judicial control over 
federal legislation sometimes assert that Marshall 
made the doctrine out of whole cloth and had no 
precedents or authority to guide him. This is mis- 
leading. It is true that it was Marshall who first 
formally declared an act of Congress unconstitu- 
tional ; but the fact should not be overlooked that in 
the case of Hylton v. the United States ^ the Supreme 

1 It has not escaped close observers, that the law which Marshall 
declared unconstitutional in Marbury v, Madison was a part of the 
Judiciary Act of 1789, which had been drafted and carried through 
by men who had served in the Convention. An analysis of the 
decision shows, however, that the section set aside was at most badly 
drawn and was not in direct conflict with the Constitution. Had 
Marshall been so inclined he might have construed the language of 
the act in such a manner as to have escaped the necessity of declaring 
it unconstitutional. The Nation, vol. Ixxii, p. 104. The oppor- 
tunity for asserting the doctrine, however, was too good to be lost, 
and Marshall was astute enough to take advantage of it. In view 
of the recent Jeflersonian triumph, he might very well have felt the 
need of having the great precedent firmly set. 

23 Dallas, 171 (1796). 



Il6 THE SUPREME COURT AND THE CONSTITUTION 

Court, with Ellsworth ^ as Chief Justice and Pater- 
son as Associate Justice (both members of the con- 
vention), exercised the right to pass upon the 
constitutionaHty of an act of Congress imposing a 
duty on carriages. On behalf of the appellant in this 
case it was argued that the law was unconstitutional 
and void in so far as it imposed a direct tax without 
apportionment among the states. The Cotut sus- 
tained the statute. If it was not understood that 
the Court had the power to hold acts of Congress 
void on constitutional grotmds, why was the case 
carried before it? If the Court beHeved that it did 
not have the power to declare the act void as well 
as the power to sustain it, why did it assume juris- 
diction at all or take the trouble to consider and 
render an opinion on the constitutionality of the tax? 
The doctrine of judicial control was a famihar one 
in legal circles throughout the period between the 
formation of the Constitution and the year 1803, 
when Marshall decided the Marbury case. In Hay- 
burn's case, already cited, the federal judges had 
refused to execute a statute which they held to be 
unconstitutional. This was in 1792. In 1794, in 

^ Ellsworth did not take part in the decision, for he had just been 
sworn into office. 



JOHN MARSHALL AND THE FATHERS 117 

the case of Glass v. The Sloop Betsey/ the Supreme 
Court heard the doctrine of judicial control laid 
down by the counsel of the appellants: 

The well-being of the whole depends upon keeping each 
department within its limits. In the state governments 
several instances have occurred where a legislative act has 
been rendered inoperative by a judicial decision that it was 
unconstitutional; and even under the federal government 
the judges, for the same reason, have refused to execute 
an act of Congress .... To the judicial and not to the ex- 
ecutive department, the citizen or subject naturally looks 
for determinations upon his property; and that agreeably 
to known rules and settled forms to which no other security 
is equal. 

In the case of Calder v, Bull,^ decided in 1798, the 
counsel for the plaintiffs in error argued "that any 
law of the federal government or of any of the state 
governments contrary to the Constitution of the 
United States is void; and that this court possesses 
the power to declare such law void." Justice Chase 
however refused to pass upon the general principle, 
because it was not necessary to the decision of the 
case before him. He said: 

Without giving an opinion at this time whether this court 
has jurisdiction to decide that any law mado by Congress 

1 3 Dallas, 13./ 
'^ 3 Dallas 38^. 



Ii8 THE SUPREME COURT AND THE CONSTITUTION 

is void, I am fully satisfied that this court has no jurisdic- 
tion to determine that any law of any state legislature 
contrary to the constitution of such state is void.^ 

In the same case Justice Iredell said : 

If any act of Congress or of the legislature of a state vio- 
lates those constitutional provisions, it is unquestionably 
void; though I admit, that as the authority to declare it 
void is of a delicate and awful natiu-e, the court will never 
resort to that authority but in a clear and urgent case. 

In view of the principles entertained by the leading 
members of the convention with whom Marshall was 
acquainted, in view of the doctrine so clearly laid 
down in ntimber 78 of The Federalist, in view of the 
arguments made more than once by eminent counsel 
before the Supreme Court, in view of Haybiim's 
case and Hylton v. the United States, in view of the 
judicial opinions several times expressed, in view of 
the purpose and spirit of the federal Constitution, it 
is difHcult to understand the temerity of those who 
speak of the power asserted by Marshall in Marbiuy 
V. Madison as ''usurpation." 

^ Of course, as everybody knows, Chase adhered stoutly to the 
doctrine of federal judicial control. 



MARBURY V. MADISON 121 

on which the whole American fabric has been erected. 
The exercise of this original right is a very great exertion; 
nor can it, nor ought it to be frequently repeated. The 
principles, therefore, so established, are deemed funda- 
mental. And as the authority from which they proceed 
is supreme, and can seldom act, they are designed to be 
permanent. 

This original and supreme will organizes the govern- 
ment, and assigns to different departments their respec- 
tive powers. It may either stop here, or establish certain 
limits not to be transcended by those departments. 

The government of the United States is of the latter 
description. The powers of the legislature are defined 
and limited; and that those limits may not be mistaken, 
or forgotten, the Constitution is written. To what pur- 
pose are powers limited, and to what purpose is that limi- 
tation committed to writing, if these limits may, at any 
time, be passed by those intended to be restrained? The 
distinction between a government with limited and unlim- 
ited powers is abolished, if those limits do not confine the 
persons on whom they are imposed, and if acts prohibited 
and acts allowed are of equal obligation. It is a proposi- 
tion too plain to be contested, that the Constitution con- 
trols any legislative act repugnant to it ; or that the legis- 
lature may alter the Constitution by an ordinary act. 

Between these alternatives there is no middle ground. 
The Constitution is either a superior paramount law, 
unchangeable by ordinary means, or it is on a level with 
ordinary legislative acts, and, like other acts, is alterable 
when the legislature shall please to alter it. 

If the former part of the alternative be true, then a legis- 
lative act contrary to the Constitution is not law; if the 
latter part be true, then written constitutions are absurd 



122 THE SUPREME COURT AND THE CONSTITUTION 

attempts, on the part of the people, to limit a power in its 
own nature illimitable. 

Certainly all those who have framed written constitu- 
tions contemplate them as forming the fimdamental and 
paramount law of the nation, and, consequently, the 
theory of every such government must be, that an act of 
the legislature, repugnant to the Constitution, is void. 

This theory is essentially attached to a written consti- 
tution, and is consequently to be considered, by this 
court, as one of the fundamental principles of our society. 
It is not, therefore, to be lost sight of in the further con- 
sideration of this subject. 

If an act of the legislature, repugnant to the Constitu- 
tion is void, does it, notwithstanding its invalidity, bind 
the courts, and oblige them to give it effect? Or, in other 
words, though it be not law, does it constitute a rule as 
operative as if it was a law? This would be to overthrow 
in fact what was established in theory; and would seem, 
at first view, an absurdity too gross to be insisted on. It 
shall, however, receive a more attentive consideration. 

It is emphatically the province and duty of the judicial 
department to say what the law is. Those who apply 
the rule to particular cases must of necessity expound and 
interpret that rule. If two laws conflict with each other, 
the courts must decide on the operation of each. 

So if a law be in opposition to the Constitution ; if both 
the law and the Constitution apply to a particular case, 
so that the court must either decide that case conform- 
ably to the law, disregarding the Constitution, or con- 
formably to the Constitution, disregarding the law, the 
court must determine which of these conflicting rules 
governs the case. This is of the very essence of judicial 
duty. 



MARBURY V. MADISON 123 

If, then, the coiirts are to regard the Constitution, and 
the Constitution is superior to any ordinary act of the 
legislature, the Constitution, and not such ordinary act, 
must govern the case to which they both apply. 

Those, then, who controvert the principle that the Con- 
stitution is to be considered, in court, as a paramount law, 
are reduced to the necessity of maintaining that courts 
must close their eyes on the Constitution, and see only 
the law. 

This doctrine would subvert the very foundation of all 
written constitutions. It would declare that an act which, 
according to the principles and theory of our government, 
is entirely void, is yet, in practice, completely obligatory. 
It would declare that if the legislature shall do what is 
expressly forbidden, such act, notwithstanding the express 
prohibition, is in reality effectual. It would be giving 
to the legislature a practical and real omnipotence, with 
the same breath which professes to restrict their powers 
within narrow limits. It is prescribing limits, and declar- 
ing that those limits may be passed at pleasure. 

That it thus reduces to nothing what we have deemed 
the greatest improvement on political institutions, a writ- 
ten constitution, would of itself be sufficient, in America, 
where written constitutions have been viewed with so 
much reverence, for rejecting the construction. But the 
peculiar expressions of the Constitution of the United 
States furnish additional arguments in favor of its rejec- 
tion. 

The judicial power of the United States is extended to 
all cases arising under the Constitution. 

Could it be the intention of those who gave this power, 
to say that in using it the Constitution should not be 
looked into? That a case arising under the Constitution 



124 THE SUPREME COURT AND THE CONSTITUTION 

shoiild be decided without examining the instrument under 
which it arises? 

This is too extravagant to be maintained. 

In some cases, then, the Constitution must be looked 
into by the judges. And if they can open it at all, what 
part of it are they forbidden to read or to obey? 

There are many other parts of the Constitution which 
serve to illustrate this subject. 

It is declared that "no tax or duty shall be laid on arti- 
cles exported from any State." Suppose a duty on the 
export of cotton, of tobacco, or of flo\ir; and a suit insti- 
tuted to recover it. Ought judgment to be rendered in 
such a case? ought the judges to close their eyes on the 
Constitution, and only see the law? 

The Constitution declares "that no bill of attainder or 
ex post facto law shall be passed." 

If, however, such a bill should be passed, and a person 
should be prosecuted under it, must the court condemn 
to death those victims whom the Constitution endeavors 
to preserve? 

"No person," says the Constitution, "shall be convicted 
of treason unless on the testimony of two witnesses to the 
same overt act, or on confession in open court." 

Here the language of the Constitution is addressed 
especially to the courts. It prescribes, directly for them a 
rule of evidence not to be departed from. If the legisla- 
ture should change that rule, and declare one witness, or 
a confession out of court, sufficient for conviction, must 
the constitutional principle yield to the legislative act? 

From these, and many other selections which might be 
made, it is apparent that the framers of the Constitution 
contemplated that instrument as a rule for the govern- 
ment of courts, as well as of the legislature. 



MARBURY V. MADISON 12$ 

Why otherwise does it direct the judges to take an oath 
to support it? This oath certainly applies in an especial 
manner to their conduct in their official character. How 
immoral to impose it on them, if they were to be used as 
the instruments, and the knowing instruments, for vio- 
lating what they swear to support! 

The oath of office, too, imposed by the legislature, is 
completely demonstrative of the legislative opinion on this 
subject. It is in these words: "I do solemnly swear that 
I will administer justice without respect to persons, and 
do equal right to the poor and to the rich; and that I will 
faithfully and impartially discharge all the duties incum- 
bent on me as , according to the best of my abilities 
and understanding, agreeably to the Constitution and laws 
of the United States." 

Why does a judge swear to discharge his duties agree- 
ably to the Constitution of the United States, if that Con- 
stitution forms no rule for his government — ^if it is closed 
upon him, and cannot be inspected by him? 

If such be the real state of things, this is worse than 
solemn mockery. To prescribe, or to take this oath, be- 
comes equally a crime. 

It is also not entirely unworthy of observation, that in 
declaring what shall be the supreme law of the land, the 
Constitution itself is first mentioned; and not the laws of 
the United States generally, but those only which shall 
be made in pursuance of the Constitution, have that rank. 

Thus, the particular phraseology of the Constitution of 
the United States confirms and strengthens the principle, 
supposed to be essential to all written constitutions, that 
a law repugnant to the Constitution is void; and that 
courts, as well as other departments, are bound by that 
instrument. 



126 THE SUPREME COURT AND THE CONSTITUTION 

In the face of the evidence above adduced, in the 
face of the poHtical doctrines enunciated time and 
again on divers occasions by the leaders in the Con- 
vention, it certainly is incumbent upon those who say 
that judicial control was not within the purpose of 
the men who framed and enacted the federal Consti- 
tution to bring forward positive evidence, not argu- 
ments resting upon silence. It is incumbent upon 
them to show that the American federal system was 
not designed primarily to commit the established 
rights of property to the guardianship of a judiciary 
removed from direct contact with popular elector- 
ates. Whether this system is outworn, whether it has 
unduly exalted property rights, is a legitimate mat- 
ter for debate ; but those who hold the affirmative 
cannot rest their case on the intent of the eighteenth- 
century statesmen who framed the Constitution. 

Note on the Views of Thomas Jeferson. 

The great authority of Jefferson is often used by the 
opponents of judicial control; and it is true that, after his 
party was in command of the legislative and executive 
branches of the government, he frequently attacked judi- 
cial ''usurpation" with great vehemence. The Federal- 
ists were in possession of the Supreme Court for some time 
after his inaugiu-ation. Jefferson was not a member of 
the convention that drafted the Constitution nor of the 



MARBURY V, MADISON 127 

Virginia convention that ratified it. There is, however, 
absolutely no question that at the time the Constitution 
was formed he favored some kind of direct judicial con- 
trol. In a letter to Madison, dated Paris, December 20, 
1787, he said: "I like the organization of the government 
into Legislative, Judiciary and Executive . . . And I 
like the negative given to the Executive with a third of 
either house, though I should have liked it better had the 
judiciary been associated for that purpose, or invested 
with a similar and separate power." ^ He had before him, 
of course, only a copy of the new instrument and the ex- 
planatory letters from his friends. In another letter from 
Paris, to F. Hopkinson, he approved the idea of a council 
of revision and added "What I disapproved from the -first 
moment also was the want of a bill of rights to guard lib- 
erty against the legislative as well as executive branches 
of the government [''by" stricken out in the manuscript — 
it would be interesting to know whether he had in mind 
"the judiciary"], that is to say, to secure freedom in 
religion, freedom of the press, freedom from monopolies, 
etc"^ Jefferson favored a bill of rights because of "the 
legal check which it puts into the hands of the judiciary." ^ 

* Writings (Ford ed.), vol. iv, pp. 475, 476. 
*Ibid., vol. V, p. 76. ^Ibid.t vol. v, p. 81. 



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more." — Record-Herald, Chicago, 111. 



The American Commonwealth 

By JAMES BRYCE 

Abridged Edition, for the use of Colleges and High Schools. Being 
an Introduction to the Study of the Government and Institutions 
of the United States. 

One volume. Crown 8vo, xiii + 547 pages, Si. 75 net 

"It is a genuine pleasure to commend to our readers the abridged 
edition of 'The American Commonwealth' just issued by the Mac- 
millan Company. Mr. Bryce's book, which has heretofore been 
issued only in two volumes, has no peer as a commentary upon 
American political institutions."— Pm&/«c Opinion. 



THE MACMILLAN COMPANY 
Publishers 64-66 Fifth Avenue New York 



Documents on the State-wide 
Initiative, Referendum, and Recall 

By CHARLES A. BEARD 
Associate Professor of Politics in Columbia University 

and 

BIRL E. SHULTZ 

Indiana Scholar in Political Science in Columbia University 

Cloth, i2mo, 394 pp., $2.00 net 

This volume includes all of the constitutional amend- 
ments providing for a state-wide system of initiative and 
referendum now in force, several of the most significant 
statutes elaborating the constitutional provisions, all of 
the constitutional amendments now pending adoption, 
six important judicial decisions, and certain materials 
relative to the state-wide recall. While no attempt has 
been made to go into the subject of the initiative, referen- 
dum, and recall as applied to local and municipal govern- 
ment, some illustrative papers showing the system in 
ordinary municipalities and commission-governed cities 
have been included. 

*«]^ ^1^ ^f «i« ^u «^ ^u 

^f» »!• •!• •!» *J* *J* *!• 

In the introductory note Professor Beard presents a 
keen analysis and scholarly discussion of the documents 
contained in this volume. His conclusions will be found 
intensely stimulating and suggestive to every student of 
political science who is interested in the present-day 
movement toward popular reform. 

Furthermore, the book will be found the most conven- 
ient source upon which to base a course on this subject. 
It will also be a valuable supplementary text for use in 
courses on State Legislation, Party Government, etc. 



THE MACMILLAN COMPANY 
Publishers 64-66 Fifth Avenue New York 



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LIBRARY OF CONGRESS 



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012 605 826 3 ^ ,,i,,,..„ 








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